Probate
Why Probate?
Once an individual dies, the assets they leave behind (also known as their estate) must be dealt with. In California, if those assets are titled in the name of the deceased individual, they must be administered in California Superior Court by way of a procedure called a “probate action” in order transfer title to the decedent's heirs. This is in contrast to assets that are titled to that individual as trustee of a trust or as a “joint” tenant, or assets of the individual that are payable on death to beneficiaries designated by the deceased person (such as life insurance policies, IRAs, 401Ks, pensions and most annuities), all of which generally do not require a probate action.
For assets titled to the individual, only a Superior Court judge is vested with the power to appoint a person and vest them with the official authority to manage the assets, transact business on behalf of the deceased individual's estate and ultimately transfer title to the decedent's assets to their heirs. That person is known as an “executor” of the estate if the deceased individual left behind a valid will naming the person to act in that capacity, or as a “personal representative” of the estate if the deceased individual died leaving behind no will.
Opening Probate
After an individual dies, someone (usually a family member or friend or a person named in the will of the deceased person) will file a “petition to administer the estate”, and seek appointment as the executor or personal representative of the individual's estate. Upon the filing of the petition, the Court Clerk will set a date for a hearing on the petition, typically about four to six weeks from the date of filing. Thereafter, the person filing the petition (the petitioner) must give notice of the petition by mail to all known heirs and any people named in the will. Additionally, the petitioner must publish a notice of the petition in a local newspaper pursuant to the local court rules. Once the notice requirements have been complied with, the petitioner signs and files a document acknowledging that he or she understands the fiduciary duties toward estate beneficiaries and the liability that the personal representative/executor assumes by taking on the role of personal representative/executor. If there are no objections, the court will issue an order appointing the petitioner as executor or personal representative at the hearing, and the Court Clerk will issue a document called “letters testamentary” or “letters of administration,” which state the powers and authority of the appointed person to administer the estate of the deceased individual.
With the "letters" document, the personal representative/executor will be able to prove to third parties, such as banks, investment
houses, and title companies, that he or she is authorized to control and dispose of the assets of the estate. Without the "letters" document, the petitioner would be denied even the most basic information about the assets, and certainly would not be able to control or dispose of the assets.
Administration of the Estate
After the initial petition has been approved by the court and a personal representative or executor has been named, the administration of the probate estate generally involves the following basic steps:
1) With the letters in hand, all pertinent information regarding the assets of the estate must be gathered and the personal representative must go about gaining control of (or marshalling) all of the assets;
2) An “inventory and appraisal” form must be prepared and filed with the court listing the assets of the deceased individual and their values as of the date of death. Bank statements showing the cash balance in the account as of the date of death must be obtained for all bank accounts. Other assets such as real property and stocks and bonds must be appraised by the official Probate Referee assigned to the case by the court.
3) The just debts of the deceased person must be paid or, if there is no debt, a four month-long period (which starts on the day the court appoints the personal representative/executor) must expire;
4) If any of the assets must be sold prior to being distributed to the beneficiaries, the personal representative is tasked with selling those assets, subject to the courts approval in some cases;
5) A final report and accounting of the personal representative/executor and petition for final distribution must be filed, which will state what assets there were on death, what their appraised value is, who is entitled to receive those assets, and detail the actions of the personal representative/executor in administering the estate, including the payment of debts and expenses; If approved by the court, the court will sign an order for final distribution of the estate;
6) The assets of the estate must then be distributed to the beneficiaries by the personal representative/executor pursuant to the order for final distribution approved by the court;
7) Any tax returns needed must be filed by the personal representative;
8) Payment must be made to the personal representative/executor and the attorney (both of which are set pursuant to a statutory schedule that uses the gross appraised value of the estate to calculate the fees) and to any CPAs; and
9) Final receipts of distribution signed by the beneficiaries must be filed and the court will issue a final order discharging the personal representative from his or her fiduciary obligations.
It is highly advisable for a person considering petitioning the court to administer the estate of a deceased individual to hire an attorney to provide guidance and legal counsel throughout the probate process, due to the multiple layers of required documents, notices, court deadlines, and the high level of fiduciary responsibility to estate beneficiaries that comes with the role of personal representative/executor.
We welcome the opportunity to represent you and guide you through the administration of a probate estate. Contact us to discuss your particular probate matter, so we can help you successfully navigate the probate process.
Once an individual dies, the assets they leave behind (also known as their estate) must be dealt with. In California, if those assets are titled in the name of the deceased individual, they must be administered in California Superior Court by way of a procedure called a “probate action” in order transfer title to the decedent's heirs. This is in contrast to assets that are titled to that individual as trustee of a trust or as a “joint” tenant, or assets of the individual that are payable on death to beneficiaries designated by the deceased person (such as life insurance policies, IRAs, 401Ks, pensions and most annuities), all of which generally do not require a probate action.
For assets titled to the individual, only a Superior Court judge is vested with the power to appoint a person and vest them with the official authority to manage the assets, transact business on behalf of the deceased individual's estate and ultimately transfer title to the decedent's assets to their heirs. That person is known as an “executor” of the estate if the deceased individual left behind a valid will naming the person to act in that capacity, or as a “personal representative” of the estate if the deceased individual died leaving behind no will.
Opening Probate
After an individual dies, someone (usually a family member or friend or a person named in the will of the deceased person) will file a “petition to administer the estate”, and seek appointment as the executor or personal representative of the individual's estate. Upon the filing of the petition, the Court Clerk will set a date for a hearing on the petition, typically about four to six weeks from the date of filing. Thereafter, the person filing the petition (the petitioner) must give notice of the petition by mail to all known heirs and any people named in the will. Additionally, the petitioner must publish a notice of the petition in a local newspaper pursuant to the local court rules. Once the notice requirements have been complied with, the petitioner signs and files a document acknowledging that he or she understands the fiduciary duties toward estate beneficiaries and the liability that the personal representative/executor assumes by taking on the role of personal representative/executor. If there are no objections, the court will issue an order appointing the petitioner as executor or personal representative at the hearing, and the Court Clerk will issue a document called “letters testamentary” or “letters of administration,” which state the powers and authority of the appointed person to administer the estate of the deceased individual.
With the "letters" document, the personal representative/executor will be able to prove to third parties, such as banks, investment
houses, and title companies, that he or she is authorized to control and dispose of the assets of the estate. Without the "letters" document, the petitioner would be denied even the most basic information about the assets, and certainly would not be able to control or dispose of the assets.
Administration of the Estate
After the initial petition has been approved by the court and a personal representative or executor has been named, the administration of the probate estate generally involves the following basic steps:
1) With the letters in hand, all pertinent information regarding the assets of the estate must be gathered and the personal representative must go about gaining control of (or marshalling) all of the assets;
2) An “inventory and appraisal” form must be prepared and filed with the court listing the assets of the deceased individual and their values as of the date of death. Bank statements showing the cash balance in the account as of the date of death must be obtained for all bank accounts. Other assets such as real property and stocks and bonds must be appraised by the official Probate Referee assigned to the case by the court.
3) The just debts of the deceased person must be paid or, if there is no debt, a four month-long period (which starts on the day the court appoints the personal representative/executor) must expire;
4) If any of the assets must be sold prior to being distributed to the beneficiaries, the personal representative is tasked with selling those assets, subject to the courts approval in some cases;
5) A final report and accounting of the personal representative/executor and petition for final distribution must be filed, which will state what assets there were on death, what their appraised value is, who is entitled to receive those assets, and detail the actions of the personal representative/executor in administering the estate, including the payment of debts and expenses; If approved by the court, the court will sign an order for final distribution of the estate;
6) The assets of the estate must then be distributed to the beneficiaries by the personal representative/executor pursuant to the order for final distribution approved by the court;
7) Any tax returns needed must be filed by the personal representative;
8) Payment must be made to the personal representative/executor and the attorney (both of which are set pursuant to a statutory schedule that uses the gross appraised value of the estate to calculate the fees) and to any CPAs; and
9) Final receipts of distribution signed by the beneficiaries must be filed and the court will issue a final order discharging the personal representative from his or her fiduciary obligations.
It is highly advisable for a person considering petitioning the court to administer the estate of a deceased individual to hire an attorney to provide guidance and legal counsel throughout the probate process, due to the multiple layers of required documents, notices, court deadlines, and the high level of fiduciary responsibility to estate beneficiaries that comes with the role of personal representative/executor.
We welcome the opportunity to represent you and guide you through the administration of a probate estate. Contact us to discuss your particular probate matter, so we can help you successfully navigate the probate process.