Probate administration in California
Counsel from a probate attorney serving all of Sonoma County
As if losing a loved one is not difficult enough for loved ones, those left behind must determine how to transfer or inherit the assets left by the deceased. In a significant number of cases, a probate proceeding will be necessary in order to “wrap up” the decedent’s financial affairs. If an executor is named in the decedent’s will, he or she must go to the probate court and open a probate proceeding. Probate is a court process where an existing will is validated, an executor is approved or appointed, and the probate process begins and, eventually, ends.
Are you intimidated by the thought of estate planning?
You need courteous and reliable advice from Sonoma's best & trusted attorney
Is Probate Necessary?
The exact process of California probate administration differs, depending on whether a will exists, if there is no will in existence, or if the decedent had a living trust. Determining the process of the probate administration will be undertaken only after determining whether probate for the estate is actually necessary. There are certain instances under California Probate Code, when probate is not required. If the decedent had no property to speak of, and no debts owed, then probate may not be necessary.
Like many states, California offers an alternative to “formal” probate for smaller estates—a simplified version. This means that, in most cases, if you have the legal right to inherit the property of the decedent, and the entire estate is valued at between $20,000 and $166,250, you may be able to transfer the property via an affidavit, rather than going through the formal probate process.
Property which is held in Joint Tenancy or Community Property with Right of Survivorship may be transferred to the surviving spouse without going through probate. In some circumstances, life insurance proceeds and retirement benefits may not have to go through the probate process. Even if the estate is small, if there are debts or tax claims, or if there is disagreement among heirs, then the formal probate process may be advisable.
Finally, if the decedent left a living trust which holds title to the property of the decedent, then that property can pass to beneficiaries without going through probate. Because California probate rules can be complex, it is almost always a good idea to speak with an experienced California probate attorney to determine whether probate is necessary, and to help guide you through the process.
Probate When a Will Exists
If the decedent left a will, then he or she probably named an executor or personal representative in the will. The executor is responsible for administration of the decedent’s estate, a process which includes:
- Proving the will is valid;
- Filing a Petition for Probate;
- Obtaining names, addresses and ages of all potential heirs;
- Sending notifications to heirs and creditors;
- Making an inventory of all assets;
- Having certain assets appraised—such as real estate;
- Attending the first hearing (Usually about 30 days after filing the Petition for Probate)
- Paying all debts and expenses for the estate;
- Filing all final tax returns for the estate;
- Maintaining and caring for the assets and property of the decedent during the probate process.
- Complying with all probate court orders during the probate process;
- Defending the estate against will contests or other types of claims against the estate, and
- Distributing the remaining assets to beneficiaries.
If you have an experienced California probate attorney helping you through the probate process, he or she will prepare all necessary documents, make court appearances and provide access to the professionals needed to achieve an efficient probate proceeding.
Probate When There Is No Will
If no will exists—or it is believed a will exists, but it cannot be located—then the decedent is said to have died intestate. In this case, either a family member will petition the court to be named as personal representative or executor, or the court will appoint a personal representative. Either way, the executor will be required to follow the same process as an executor who is named by the decedent. When no will was left, or the will is declared invalid, then California intestate succession laws will determine who receives which assets belonging to the estate. The legal heirs must be identified and located as a part of the probate administration process.
Are Executors Paid for Their Services?
Under California Probate laws, the executor is entitled to a specific fee for his or her services, depending on the size of the estate. If the executor is a family member and an inheritor, the executor fees may be waived. If you are naming an executor in your will, make absolutely certain the executor understands what is involved, and is willing to put in the time and effort necessary. Even if an executor is named in a will, he or she could potentially be unable to serve at the time of the decedent’s death, therefore the court would appoint an executor.
What if There is a Trust?
If the decedent had only a trust in his or her estate plan, then no probate process is necessary, as the assets in the trust will pass on to named beneficiaries. A living trust helps provide for loved ones after death while also saving family members from the stress, expenses and time of the probate process. When there is a revocable or irrevocable living trust in existence, the assets and properties are held in a trust which is typically managed by the trust maker during their life and is managed by a successor trustee after the death of the original trustee.
How the Gullotta Law Group Can Help
If you are a named executor for a person and have no idea how to begin the process, speaking to an experienced probate attorney from the Gullotta Law Group can be extremely beneficial. Or, perhaps you are considering putting together an estate plan, and need information on how the probate process will work following your death. Either way, the average person simply does not have the level of knowledge and experience to successfully deal with probate. Further, during a time of grieving for the loss of a loved one, dealing with probate can seem entirely too overwhelming. Although estate planning is never something a person looks forward to, the Gullotta Law Group can help make the process as painless as possible or can guide you through the probate process if you are a named executor. Do not wait—contact the Gullotta Law Group today.