Probate

When a loved one passes away without a trust, or leaves behind assets that were not properly protected, their estate usually must go through a court-supervised process called probate.

Simply put, probate is the legal process used to verify a Will (if one exists), inventory the deceased person’s property, pay off their final debts and taxes, and legally transfer the remaining assets to their rightful heirs. If a decedent passed away without a Will, the court must then look to the California Probate Code to determine who is not only eligible to become the administrator of an estate, but who the rightful heirs are.

The court must oversee every major decision and action for the estate administration, which makes traditional probate in California a notoriously slow, public, and expensive process. Understanding how the process works can help your family navigate this challenging time with confidence.

Probate is triggered when a person dies owning property solely in their name, with no designated beneficiary or trust to automatically pass the asset along.

The court steps in to act as a neutral supervisor, but it has a complex job. If a Will is presented to the court, the court will have the responsibility of declaring whether the Will is valid or not. If a Will is determined to be valid and is uncontested, the court will also look to protect the rights of the decedent’s creditors, heirs and named beneficiaries. Primarily, and where many get confused, is that the court is highly focused on creditors of a decedent being paid and taxes filed before any assets can be distributed to any heir.

If there is no Will, the court must name the heirs at law, and the Probate Code will also establish how much of an estate each heir is eligible to inherit. This can be a contentious process, resulting in additional delays to the administration.

California has specific rules that make probate a heavy burden for grieving families. Probate is a marathon. Due to mandatory waiting periods and heavily backlogged court schedules, a standard probate routinely takes 9 to 12 months, on the fast track, but most estates can easily stretch into multiple years.

In California, probate attorney fees and executor or administrator fees are set by state law. These fees are calculated as a fixed percentage of the gross value of the estate, regardless of how much debt is owed on the property. For example, a $500,000 home with a $400,000 mortgage is billed as a $500,000 asset, resulting in thousands of dollars in mandatory legal fees before the home can be passed down.

While every estate is unique, a standard California probate follows a strict sequence of events:

• Filing the Petition for Probate or Letters of Administration
• The initial hearing & appointment, absent objection
• Inventory and Appraisal.
• Notice to Creditors and Allowance or Rejection of those claims.
• Marshaling assets;
• Paying taxes and debts of the decedent;
• Petition for Accounting and Final Distribution; and,
• Closing of Estate.

Navigating the probate court alone is incredibly difficult. Missing a single statutory deadline or filing the wrong form can cause the court to reject your paperwork, resetting your timeline by months. You should consult an experienced probate lawyer immediately if you were named as an executor, there is no Will (i.e. intestacy), the estate has real property, there is family contention or disagreement about assets and inheritance.

Each county probate court also has their own rules in addition to the Probate Code requirements, which can make administering an estate without legal counsel even more difficult to understand. Competent counsel can not only relieve the burden of tedious and time-consuming paperwork but also assist in ensuring that you are complying with your fiduciary duties and complete the estate administration in a timely fashion closer to that fast-track timeline for probate in California.

Losing a loved one is emotionally overwhelming, and trying to manage a complex, strict court process while grieving can feel impossible. Our legal team specializes in walking families through the California probate system as efficiently and painlessly as possible. We handle the paperwork, the court hearings, and the creditors so you can focus on your family.

Contact our office today to schedule a consultation, and let us help you find the clearest, most cost-effective path forward.