I have a small estate. Does it have to be probated?
In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated. There are exceptions made if the decedent is survived by a spouse.
What is a probate asset?
Assets held only in the name of the decedent are generally probate assets. An asset is not counted as a probate asset if it is: 1) owned in joint tenancy (but not if it is owned in tenancy in common) or 2) if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it is added to the estate and probated. If there is a surviving spouse, a formal probate can usually be avoided with a spousal property petition.
What is an executor?
The executor, also called an administrator or personal representative, is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent’s closest relatives have the highest priority to become administrator of the estate.
How does a probate case get started?
Probate begins with the filing of a petition for probate at the Superior Court in the county where the decedent lived. The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether a bond will be required.
Who decides whether the petition will be approved?
The decision is made by the judge who hears the case, but the preliminary work is done in most counties by a court staff member who is called the probate examiner. The probate examiner reviews the file, makes sure that state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner disagrees with the recommendation, a hearing will be held to give the petitioner a chance to present his or her case.
What are the executor’s duties?
Administration of the estate includes managing the assets to prevent losses, paying bills for the estate, filing tax returns, preparing an inventory of the assets, locating heirs, and dozens of other duties. The goal is to wrap up all of the loose ends of the decedent’s financial affairs and distribute the estate to the beneficiaries without further legal problems.
How long does an average probate take?
If the probate has no unusual problems, it can be concluded in 18 months to 2 years. That includes a four-month creditor’s claims period, and the time it takes after a petition is filed before it is actually heard. Due to crowded court calendars, hearings are often held several months after the petition is filed. There may be other challenges with creditors, taxes, or will contests that will delay the probate for longer periods.
How can someone see the will of a person who has died?
If the estate is in probate, the records of the probate are public documents and can be accessed through the Superior court of the county in which decedent lived. The probate file will include the will and all other documents that have been filed in the case.
Who will receive a notice that the probate is being started?
State law requires that notices be sent to all of the heirs of the decedent, beneficiaries who are mentioned in the will, and proposed executors. The notice will state the date and time of the hearing and the courthouse where the case will be heard.
How do attorneys get paid?
All fees are paid from the estate assets. The amount of the payable fees are based upon a court formula that is a percent of all assets. The amount is generally 3% of assets.
Note: All F&A taken from ca-trusts.com