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Probate in California
What is probate?
Probate is a legal process in the California courts used to settle an “Estate” of a “Decedent”. A “Decedent” for California probate is a resident of California who has passed away or possibly a person who owned real property in California. An “Estate” is the Decedent’s property that is subject to a California Probate. Generally, probate is used to transfer good (marketable) title to assets to the correct person or persons (or entity such as a charity) after paying any creditors and administrative costs and after following required administrative steps. Probate is very technical in nature and requires a sustained effort to complete the process in a timely fashion.
Of course, just as every person is unique, every probate is unique. However, there is a general framework you can expect for every probate in California. This information is not intended to be legal advice but is of general, educational nature and does not include all possible aspects or complications of the probate process. We recommend that you speak to a qualified attorney about the specific facts of your case before commencing a probate matter.
There are several steps to the process as follows:
1) Preliminary Matters
When you are ready to move forward with settling a Decedent’s estate, there are several preliminary matters to consider. First, you should locate the Decedent’s estate planning documents (if there are any). If you locate estate planning documents, review them carefully and determine who is the named Trustee and/or Executor. An Executor is a named person in a Will who is nominated by the Decedent to manage the probate. A Trustee is named person in a Trust who is nominated by the Decedent to manage administration of the Trust. Contact the named Executor(s) and Trustee(s) to determine if they are willing to act to manage the estate. If the Decedent did not have estate planning documents, someone must decide to manage the Decedent’s estate (if several persons would like to manage the estate, there is an order of priority for service provided in the probate code). If there is no Executor named or none of the named Executors nominated in a will are able to serve, this person who manages a probate estate is called an Administrator. The term Personal Representative is a general term and can apply to either an Executor or an Administrator who is appointed to act by the Court.
Next, the Executor, Administrator, and/or Trustee must determine if there are any assets that are required to be probated. Please note that assets with an effective beneficiary designation do not pass subject to probate (for example, a retirement account or a bank account with a designated beneficiary). Assets titled in the name of a Trust do not pass according to probate but are managed by the Trustee and are subject to Trust Administration and the Trustee will manage these assets. Assets held in joint tenancy or community property with right of survivorship when there is a surviving co-owner do not pass subject to probate (for example, an automobile held in joint ownership or a home held in joint tenancy) but pass according to operation of law (although documents are required to be recorded or processed to remove the Decedent from title). Please note that if title is held as Tenants in Common or in individual ownership, the Decedent’s asset passes according to the probate rules if the real property was not held in a trust or does not have an effective pay on death beneficiary designation.
If the total amount of assets without a surviving co-owner, beneficiary designations, and are outside of trust are less than $150,000, a simplified procedure can be used 40 days after death. The $150,000 limit does not include real property, a lesser limit of $50,000 applies to real property making it very rare for real property in California to be able to be administered through the alternative process (although may be useful for timeshares). A simplified procedure may also be available for spouses.
An experienced California attorney can advise you as to whether an asset is required to be probated or if an alternative procedure for transfer of title may be available.
2) Lodge Will and Petition for Probate
One you’ve determined that there are assets of Decedent subject to Probate, your next step is to Petition for Probate. There is a mandatory Judicial Council Form, the Petition for Probate, that must be completed and filed with the Court, along with a filing fee. There are several different scenarios anticipated on the Petition for Probate, including: 1) when there is a will and the named executor has decided to act; 2) when there is a will and someone other than the named executor has decide to act; 3) when there is no will and the Estate is governed by the California intestacy statutes; and 4) when you have special circumstances and need to have a special administrative powers pending the formal petition for probate.
You will need to determine the correct county to file your Petition. Usually, this is the county where the Decedent resided but can also be the county where the Decedent owned property if the Decedent was a non-Californian resident. Each county in California has its own local rules and procedures which should be reviewed prior to submitting any documents to the Court.
Generally, you will need information from the Decedent’s Death Certificate, information about the Decedent’s estate planning documents, and information regarding the Decedent’s family structure, named beneficiaries (in the Will) or heirs (if the Estate passes according to the intestacy statutes), and information regarding the assets subject to probate. It is very important that all required persons who are entitled to notification during the probate process are listed on page 4 of the Petition for Probate. The determination of who is entitled to receive notifications during the probate process is one of the items that must be correctly evaluated at the outset of the probate process or else delays may occur. An experienced attorney can assist you with identifying the persons required to be listed on page 4 of the Petition for Probate.
You will also need to determine whether you wish to petition for Authorization to Administer Under the Independent Administration of Estates Act (“IAEA”). Generally, if you do not have IAEA powers, you will have to petition the court for prior authorization before accomplishing many acts during the probate administration process which can sometimes delay the administration of the Estate significantly. A careful review of the Will is necessary to determine whether IAEA powers are allowed or disallowed. If you are granted IAEA powers, you will have to carefully follow the IAEA during the probate administration.
One of the biggest hurdles associated with Petitioning for Probate is to qualify for a bond if a bond is required (Many wills waive the requirement for a bond. However, if you are an out-of-state executor or administrator the Court will most likely still require you to have a bond (sometimes a reduced amount) even if the will waives a bond). It is important to apply for a bond and receive approval before petitioning for probate. If you do not qualify for a bond, the Court will not appoint you and you will not be able to have your filing fees refunded to you. Currently the filing fee for Petition for Probate is $435.00 and some counties also impose a Court Reporter of fee of approximately $30 in addition to the $435.00. This is a costly and easily avoidable mistake. A qualified attorney can help you with the bond application process and to calculate the amount of bond required.
You will also need to attach a copy of the “Lodged” Will (if there is one). California law states that within 30 days of the Decedent’s death (or within 30 days of knowledge of Decedent’s death), you (meaning the person in possession of the Decedent’s will) must “Lodge” a copy of the Decedent’s will with the clerk of the Court. To Lodge a will is to give the will into the safekeeping of the Clerk, obtain a copy marked “Lodged”, and pay a fee.
At the time you file your Petition for Probate and pay your fee, the Clerk will also give you a hearing date, time, and location for your appointment as the personal representative of the Estate. The hearing date assigned will be several weeks if not a few months in the future depending on the case load of the particular County’s Court where you have filed.
A Note Regarding Special Administration
Sometimes there are circumstances present which necessitate that you act quickly and you cannot wait the several weeks or months for a hearing date for an appointment hearing. Examples of circumstances warranting Special Administration include, but are not limited to (every estate is different), danger of foreclosure of real property, the need to manager or operate rental properties or a business, and substantial risk of loss to the estate or special concerns of dependent family members. The process for petitioning for Special Administration is different from the general probate and are initially heard on an ex parte basis. Each county has different rules as to how ex parte hearings are held and the local rules should be carefully reviewed prior to petition. Notice is required to be given to the persons indicated on page 4 of the Petition for Probate but there are different rules in place due to the shortened time lines. A Court will only grant a Petition for Special Administration if there is compelling reason to do which is clearly demonstrated in the Petition. The powers granted to a personal representative under Special Administration are more restricted than in a general probate. Additional powers may be granted depending on the circumstances and necessity. The time frame for authority to act under Special Administration will expire on the date Letters are issued for the general probate or a sooner time as indicated by the Court. If a petition is denied for Special Administration, a hearing date may be set by the Court. Petitioning for Special Administration is tricky and consulting with an attorney is highly recommended if you have any circumstances which require quick action by a personal representative.
3) Notice of Petition to Administer Estate
You must serve, or mail a copy, of the Petition for Probate and the Notice of Petition to Administer the Estate to every person entitled to Notice (these are the persons are listed on page 4 of the Petition for Probate as well as anyone who has requested Special Notice or may be otherwise entitled to notice). The Notice of Petition to Administer the Estate includes the information about the upcoming Court hearing. The Notice of Petition to Administer the Estate and Proof of Service must be filed with the Court in time for timely review by the Court prior to your hearing.
4) Proof of Publication
You must also publish in a local newspaper the information contained on the Notice of Petition to Administer Estate. At least three publications (at specified times and intervals) must be accomplished in a newspaper of general circulation in the city where the Decedent resided at the time of death (or where the Decedent’s property is located for non-California Decedents owning property in California) as set forth in California Probate Code section 8121. The probate code also has specific rules as far as the type size for the caption and text of the publication (at least 8-point type for the caption and 7-point for the text). The proof of publication must be filed with the Court in time for the Court’s review prior to your hearing. There is a fee charged by the newspaper to publish the required notification which varies according to local pricing.
5) Duties and Liabilities of Personal Representative
The mandatory Judicial Council form, Duties and Liabilities of Personal Representative, must also be accurately completed and filed with the Court in time for review by the Court. This document summarizes the role of the personal representative during the probate process and includes information regarding the Managing the Estate’s Assets, Inventory of Estate Property, Notice to Creditors, Insurance, Record Keeping, and Consulting an Attorney.
6) Order for Probate
Before the hearing date, you will need to lodge a proposed Order for Probate, a mandatory judicial council form, with the Court. This will be the document that the Judge signs granting you authority to act as the Personal Representative. The Order for Probate must match or be consistent with your Petition for Probate.
7) Letters of Administration
Depending on the type of probate you petitioned for you will have different types of Letters. Letters are an official document issued by the Court after you have received your signed Order for Probate and have filed the requisite bond amount. There are four types of Letters: 1) Letters Testamentary (issued when you are the named executor of a Will admitted to probate and are appointed to act as Personal Representative); 2) Letters of Administration with Will Annexed (issued when you are not the named executor of a Will that is admitted to probate and are appointed to act as Personal Representative); 3) Letters of Administration (issued when there is no Will and you are appointed to act as Administrator); and Letter Special Administration (issued when you have special circumstances pending the formal petition for probate). Letters are evidence of your authority to act on behalf of the Estate and are used whenever you are conducting business on behalf of the Estate. The Letters must match or be consistent with your Order and Petition for Probate.
8) Tentative Rulings or Probate Examiner’s Notes
Each county in California has its own method of reviewing your submitted documents prior to the hearing and letting you know the results of their review. It is important to contact the Court directly or review the Court’s website to determine their procedure for review. Generally if you are represented your attorney will assist you with this process. It is important that you have all documents required to be filed with the Court actually filed, all required notice served and proof of service filed with the Court, and all necessary steps taken in a timely fashion before the Court reviews your file. Many courts will issue a Tentative Ruling or Probate Examiner’s Notes prior to your hearing date with any items that the Court requires further information or explanation of, that you may have omitted, or that does not comply with California law or procedure. Often due to the unique facts of your case, the Court may require more information even if you are represented by an attorney. Another person may also object to your Petition and file an Objection to your appointment. If you do not cure or provide the information prior to the hearing date according to the Court’s particular rules (in the format and the time required by the local court), you will most likely have a continuance (meaning your hearing date will be set out to a future date to give you time to resolve any issues. For example, you did not send the proper notification to all persons entitled to notice.) or some court’s will drop your petition (meaning you will need to start from scratch and re-file your documents. For example, this can happen if you filed in the wrong county, etc.). Because probate has many technical requirements, non-represented parties often will have many items listed on the Court’s Tentative Ruling or Probate Examiner’s Notes. We are more than happy to assist you with matters where you have encountered this issue.
9) Appointment Hearing
Your big day has finally arrived! At this hearing, the Judge will call your case and you will need to appear on the record and answer the Judge’s questions. If all is in order, the Judge will admit the Will (if any) to probate, appoint you as personal representative, grant or deny Independent Administration of Estates Act powers, and issue the Order for Probate. After obtaining the Order from the Judge or Bailiff, you will go to the Clerk’s office to file the bond, obtain certified copies of the Letters (you may need several certified copies depending on the assets of the Estate) and verify you have a filed copy of the Order. Each county has a slightly different variation of how this process is accomplished but the end result is that you will walk out of the courthouse with court-filed Order and certified Letters. You are now ready to begin the probate process!
Generally, if you are represented by an attorney, you do not usually have to attend the hearing, your attorney will do it on your behalf. However, there are some circumstances when the Court may require you to personally appear which are usually noted in the Tentative Ruling or Probate Examiners’ Notes.
10) Probate Administration
Now that you have your Letters, you can now begin the administration of the probate estate. There are many administrative steps to accomplish during the probate administration. Please check back with us as we are updating our content.
Attorneys at Law
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