California Probate Attorney
When a person dies, his/her real and personal property must be transferred to beneficiaries or heirs. The legal process for transferring the decedent’s property is probate. Probate ensures that all of the decedent’s property is marshalled, that creditors and taxes are paid, and that the remaining assets are distributed according to the decedent’s wishes.
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California Probate Process Overview
Within 30 days of death, the executor of the estate must file the decedent’s will with the court in the county where he/she last resided. The executor is usually named in the will. If the will did not name a executor, the court will appoint a probate administrator. If there is not will, a representative for the estate will need to file a petition to the court to appoint an administrator. The administrator will need to determine if the estate needs to go through probate. An estate valued less than $150,000 can go through a summary probate procedure where heirs can claim assets with a sworn statement. If the estate needs to go through probate, the administrator must file a petition for probate. If the decedent owned property in another state, the administrator will need to file a separate probate petition in that state as well.
After the petition is filed, the court will set a hearing, usually 4-6 weeks after the filing. The administrator will need to notify anyone named in the will, any other potential heirs, and all creditors about the hearing a minimum of 15 days before the hearing. The administrator will need to publish a notice of the hearing in a local newspaper at least three times before the hearing date. The judge must grant an Order for Probate to start the probate case timeline.
Inventory & Appraisal of the Decedent’s Estate
Once Letters are issued, the appointed estate administrator must take inventory of all of the assets owned by the decedent and have them appraised, and submit a list of a assets and their appraised value to the court. Assets include stocks, bonds, bank accounts, real estate, and personal property such as cars, boats, and art. Certain assets are not included in the estate and do not need to go through probate. These assets include assets in a living trust, life insurance payments, retirement funds with a named beneficiary, and assets held in joint tenancy with the right of survivorship. The administrator is responsible for maintaining assets in the estate, such as paying insurance on a home and safeguarding valuables. The administrator is also responsible for transferring title of these assets.
Probate Creditor Claims
While the estate is open, creditors can make claims against the estate. The court requires that the estate remain open for at least 4-6 months after the initial hearing to allow creditors to make claims on the estate. The administrator must determine which claims are valid and pay those claims. Debts include unpaid bills as well as funeral expenses. The administrator also is responsible for paying estate taxes and must file a final income tax return for the decadent. The administrator may need to sell property or assets to settle claims against the estate. If there is not enough money in the estate after debts and taxes have been paid, then the estate administrator will not be held personally liable for the balance of the debt.
Role of the Probate Examiner and Probate Referee
During the probate process, there are two very important people you will likely encounter: the probate examiner and the probate referee. A probate examiner is an official employed by the court. The probate examiner reviews the initial probate petition to ensure it complies with state and local law. A probate referee is a neutral party who appraises the value of the estate.
A probate referee is a professional who is trained on a variety of valuations, including real estate. Probate referees must pass a state exam and be appointed by the State Comptrollers Office. Most counties in California will automatically appoint a probate referee. If not, the executor will need to file a form with the court requesting one. If the executor can show “good cause” the court may waive the requirement for a probate referee, but most judges will not grant this request.
Once a probate referee has been appointed, the administrator will give the referee a list of the estate’s assets. The referee will appraise non-cash assets such as real estate, stocks, bonds, valuable collectibles, furniture, household items, and vehicles. When the probate referee finishes the valuation, he/she signs the Inventory and Appraisal (Form DE-160). This form certifies that the appraisal was honest, impartial, and to the best of his/her ability. The Inventory and Appraisal form is required to finish the probate process. Probate referees earn a fee of 0.01% or $75, whichever is larger, which is paid by the estate.
After the estate is appraised, there will be a hearing to close the estate. Once a there is hearing date set, the probate examiner will review all of the documents filed in the matter and prepare a written summary known as probate notes. The probate notes include any documents or information that was missing. The probate notes will be posted on the court’s website before the hearing. The exact timing varies from county to county, for example in Riverside County, the notes are posted 10 days before the hearing. It is vital that the executor check the probate notes so he/she can cure any defects before the hearing. Curing a defect may require filing a clarifying declaration or an amendment to the petition. The probate examiner is available to answer any questions about the probate notes. In most counties, the executor can ask the probate examiner questions by email and will respond to emails within 24 hours. The probate examiner can answer procedural questions, but will not give legal advice. The executor will need to file corrected paperwork before the hearing. The probate examiner will post a set of updated notes before the hearing. The timing of the updated notes varies from county to county- some jurisdictions update the notes daily while others will only do so a few days before the hearing.
Probate Final Discharge
Once the estate taxes have been paid and debts have been settled, the administrator can petition the court to close the estate. The petition includes all of the actions the administrator has taken on behalf of the estate. The court will set a date for a final hearing, approximately 4-6 weeks after the administrator files the final petition. The administrator will need to notify all interested parties (i.e. people named in the will and potential heirs) of the hearing. At the hearing the judge will sign a final dissolution of the estate. Attorney fees, court costs, and administrators will need to be paid- usually these fees are a percentage of the total estate, typically between 3-10%. Once the judge signs the order, the administrator can distribute the remaining assets according to the terms of the will. After all of the assets have been distributed, the administrator will need to file a Declaration of Final Discharge.
The probate process in California is long. While it is possible to expedite the probate process, the most probate proceedings take 12-18 months before the estate is closed.