Understanding the Process of Probating a Will

What is estate probate?

An estate probate is a legal process of administering a deceased’s assets under a state court’s supervision. It’s generally a three-step process involving the following activities:

• Asset identification and valuation
• Paying off estate taxes and debts
• Distribution of the remaining assets to beneficiaries and heirs

When should one file for probate in California?

California law requires executors to petition for probate 30 days following the death of the estate owner and after learning about their nomination to the position. If the executor fails to petition for a probate hearing in time, it can be interpreted as a waiver of their right as executor, and someone else can seek to be appointed to the position.

In case the estate owner dies sans last will and testament, a close friend or family member can petition the court to be appointed the administrator. It’s just like petitioning for a probate hearing, but in this case, one seeks the position of estate administrator, not executor. It must be done within 40 days of the estate owner’s demise.

The executor or individual seeking to be appointed the administrator must start by filing a copy of the latest will and testament with the court and petition the court to grant probate.

If there’s no will, the individual can skip the process and file a request to be appointed administrator. In any case, the court will require the executor or individual seeking the position of administrator to submit a comprehensive list of beneficiaries, heirs, and creditors, too.

Once the court sets a date for the probate hearing, the executor or individual applying for the administrator position must notify interested parties about the date via mail and public notice. The public notice must run in the local newspaper for a number of weeks.

The executor or individual seeking the administrator position cannot skip to do notification. You may need to submit evidence that you notified interested parties. If you cannot reach specific parties, there are special procedures to pursue.

What does a probate hearing entail?

Upon receiving notification of the probate hearing, interested parties will be allowed a specific period to make their claims formal. The hearing date is when the judge decides whether to grant the request for probating a will or appoint an administrator to manage the deceased’s assets.

If a probate petition or application for the administrator position is approved, the individual is granted the legal authority to administer a decedent’s estate and allocate its assets to beneficiaries.

Individual aspects of a probate hearing could differ from a case-to-case basis to another, but they generally proceed as follows:

• The executor or administrator submits proof supporting their petition, such as the decedent’s will (if any), death certificate, and list of assets and debts.
• The court allows other beneficiaries, heirs, and interested parties to present evidence at the hearing.
• The judge decides whether to allow or reject the probate petition. In the case of the former, they’ll admit the will to probate or appoint an administrator if the will is missing.
• The executor or administrator affects the decedent’s last will and testament or administers the estate as per the confines of the law. In any case, executors have a fiduciary responsibility to beneficiaries, heirs, and creditors and must act with good faith, care, and loyalty when carrying out their duties.

When is Estate Probate Necessary?

Probate is crucial for ensuring a deceased estate is distributed smoothly, efficiently, and within the confines of the law. However, there are cases where the process can be skipped altogether. It all depends on the estate ownership structure. In any case, it’s the duty of the executor or the deceased’s family to work with a probate and estate attorney to determine whether probate is necessary or not.

Probate is generally necessary in cases involving the following situations:

Complex Estates

Complex estates involving significant assets, multiple beneficiaries, or complex ownership structures can be challenging to administer without causing disputes. Working with the probate court from the beginning to avoid potential disagreements and litigation is advisable.

Children or Beneficiaries with Special Needs

Probate is also crucial in cases involving minors or beneficiaries with special needs to ensure their rights and interests are protected from the start.

Complex Holdings

Probate is also important in cases involving complex and unique holdings such as real estate properties, businesses, and intellectual properties. These assets require specialized help to inventory and distribute, so working with the court from the start is beneficial.

Lack of Trust

Most estate owners believe that leaving a last will and testament is enough to exclude their estate from the probate process. However, a last will and testament is merely a letter outlining your desires to the probate judge, and it’s not legally binding. It won’t help beneficiaries and heirs avoid court fees and the probate process. The surest way to avoid probate involves the use of Trusts. These legal arrangements allow another person or entity to take over the administration of your assets for the benefit of named beneficiaries. Unlike a last will and testament, a trust protects assets from creditors and excessive taxes, controlling their distribution without needing court involvement (probate).

How Long Can Probate Take?

Probate begins once the court admits the will to probate or appoints someone as the estate administrator. In either case, the executor or administrator is given up to a year to carry out the decedent’s last will and testament or administer the estate as per intestacy laws. These laws prioritize the spouse, followed by the children and grandchildren (if any). Next, the administrator can consider the decedent’s parents and siblings. It’s generally a tough and time-consuming process, so it’s always recommended to leave a will and trust if possible.

In some cases, estate probates can continue for several years after the owner’s death. This occurs when the executor or administrator files estate taxes with the IRS, in which case they are allowed an extra 18 months to complete probate. Furthermore, the court may extend the probate process in case of complex holdings, estate litigation, and other intervening factors. However, an executor or administrator should not delay asset distribution by intentionally neglecting their duties, mishandling estate assets, or mistreating beneficiaries. Such cases constitute a breach of fiduciary duty and can lead to legal action, resulting in the removal of the individual and orders to pay surcharge penalties to reimburse beneficiaries for any financial harm they caused.

When is Probate Not Necessary?

Probate is an important estate administration process, but it’s not always necessary. There are instances when it can be avoided, leading to faster asset distribution. For example, there’s no need for probate in cases of straightforward ownership or when holdings amount to less than $184,500. In such cases, the executor or family attorney can file for small estate affidavits to skip probate and avoid related legal procedures and expenses.

Probate is also unnecessary when the deceased leaves a trust or beneficiary designation, allowing for the direct transfer of assets. A legally binding trust document means your asset distribution wishes are final.

Additionally, probate can be avoided when dealing with life insurance, retirement accounts, survivorship assets, and communal properties. In such cases, the executor can use shortcuts such as spousal property petitions to avoid probate.

However, it’s essential to exercise caution. Problems can arise regarding the deceased’s debt when you’ve already distributed assets, and the heirs and beneficiaries may not want to use their share to cover the debt. Always address outstanding taxes and obligations first before distributing assets.

In conclusion, probating a will in California is a vast topic with aspects that vary from case to case. It’s advisable to consult with qualified probate and estate attorneys to explain your situation and obtain the necessary guidance. We are trust and estate attorneys with extensive experience in the California probate process. Please schedule an appointment on our website to speak with a qualified expert and learn more about our services.