PART I: WHAT ASSETS HAVE TO GO TO PROBATE?
You’ve lost a loved one, and now it’s time to think about moving their assets, their homes, their cars, and other goods on to their heirs: a group which may well include yourself. Unless it’s your spouse who passed, or unless assets are within PODs (Payable on Death accounts) or a valid Living Trust, you will likely have to complete this process through California Probate Court.
What does Probate of Will mean? To “probate a Will” or do a “probate of Will” or “probate estate” means that you take the Will of an estate through specific steps in a specialized California Probate Court before distributing the assets. The steps in the California probate process are clear, but the steps are also numerous—and like most legal processes, everything has to be done just right, and in just the right order.
If you are the executor of someone’s Last Will and Testament, this responsibility falls on you. You are legally required to see probate through in an honest and diligent way—or you may face liability. If at least some of the assets are within a Living Trust, make sure to start with our article on Trust Administration. For assets not in a Living Trust, and not held by a spouse, read on…
Can I Do Probate on My Own, Without an Attorney?
It’s entirely possible to complete all the steps of probate on your own, without an attorney representing you. This article is intended to get you started on the right path.
If, however, at any point you find you need help with the below process, we offer robust, comprehensive, and experienced California Probate Representation. In other words, our attorneys and our staff handle all the steps. Importantly, CunninghamLegal charges no upfront fees on probates. We wait until probate is completed and the estate settlement pays for our very reasonable services. Please contact us to learn more.
How Long Does Probate Take in California?
California law says that the executor of a will or other representative of the deceased must complete the probate process within one year of the day they are appointed (usually months after the date of death), or they must formally explain to the court why they cannot. In practice, however, the process often ends up taking 18-24 months, especially when courts are backed up, or if an error is made along the way.
What Are the Costs of Probate in California?
The costs of probate are set by state law, and may include everything from court fees, executor’s fees, appraisal fees for properties, costs for certified copies of documents, accounting fees, legal fees, and possibly something called a “surety bond,” which is a kind of insurance we’ll explain later. If you go through an attorney, all this is likely to run between 4% to 7% of the total estate value. If you do it yourself, perhaps less, but it may consume a year or more of your own time.
If someone contests a Will, or the beneficiaries otherwise disagree with a distribution, the costs will likely be much higher, and may take years to resolve.
Do I Really Have to Go Through Probate? What If the Will Is Straightforward?
It’s a common and dangerous myth that a Will is all the legal documentation you need to claim an inheritance. In California, a “Last Will & Testament” does NOT prevent you from having to go through probate. Instead, think of a Will as a kind of letter written to a probate judge, expressing the desires of the deceased. During probate, you present the Will to a judge, and the judge decides what actually happens.
What If the Executor Does Not Probate the Will?
To be even more clear, except with respect to assets clearly not subject to probate (see below), you cannot simply read a Will and do what it says on your own, without a court process. If you are not either a spouse or the valid Trustee of an estate, and you simply take possession of, say, cash lying around the house, or a car, or withdraw money from an account of the deceased, you could be prosecuted, even if you are the executor of the Will.
If you are named as an executor, but fail to take any action to start a probate, you may also be held personally liable for resulting expenses incurred by the estate and financial impacts to the deceased’s heirs.
What Assets Don’t Have to Go Through Estate Probate?
Does a Will have to be probated? The answer is “maybe.”
Some specific assets may be subject to distribution by the probate court, and some may not. For starters, any assets placed in a valid (and signed!) Living Trust before the death will not have to move through probate court – they can simply be distributed by the new Trustee, according to the terms of the Trust.
Similarly, life insurance payments do not have to move through probate, as they are paid directly to beneficiaries. Assets in banks and investment firms which have Payable on Death (POD) or Transfer on Death (TOD) beneficiaries clearly identified on paperwork at the institution where they are held can be transferred directly to those beneficiaries by the institution, with no probate. Indeed, using PODs, most retirement accounts are transferred in this manner, outside of probate, even if a probate occurs.
If the total assets of an estate are very low, between $20,000 and $166,250, depending on the circumstances, those assets can move through simplified procedures, which we do not detail here—enquire at the Probate Court in the California County where the decedent resided.
And of course, any assets or properties jointly owned by spouses can generally be claimed by a surviving spouse without probate. Assets not jointly owned are a different story, and probate will likely be necessary.
In general, any assets NOT covered by one of the above situations will have to go through Probate Court, Will or no Will. As an example, your loved one may have left a Living Trust, but may have forgotten to re-title their house under that Trust. Or they may have neglected to properly list PODs on an investment account. No Living Trust and assets over $166,250? A full, formal probate will certainly be necessary.
Do I Have Any Recourse If Something Was Left Out of a Trust?
What happens if your loved one left a Living Trust, but an important asset was left out of that Trust? You may have some recourse for avoiding probate on those assets, depending on the exact wording of the Trust itself. Under certain circumstances, for example, if a Living Trust lists a house as a Trust asset, but the paperwork was never actually filed to put the house under that Trust, you may be able to petition for certain exemptions from probate under what’s called the Heggstad Exemption or rulings of the Ukkestad case. We discuss Heggstad and other circumstances under our article about Trust Administration.
High-Level Goals of Probate
At the highest level, the Goals of Probate include:
- Determining if a Will exists and if that Will is valid
- Determining who are the decedent’s heirs or beneficiaries
- Putting the right person in charge of closing out the estate
- Inventorying all the decedent’s property and calculating how much it’s worth
- Taking care of the decedent’s financial responsibilities, including taxes owed
- Transferring the decedent’s property to the heirs or beneficiaries
How to get to these goals? Start by reading our step-by-step guide, below. And again, if you get stuck or confused, please contact us about our Probate Representation services, or fill out the form on this page.
PART II: HOW TO PROBATE A WILL IN CALIFORNIA – A STEP-BY-STEP GUIDE
What happens in Probate Court? What is Probate Court? What does Probate mean?
Here’s a detailed view of the steps in probate. Here we will show you how to probate a Will without an attorney. But please realize that no article like this can take into account the many different personal circumstances, variations between specific courtrooms, changes in the law, and so forth. Use this only as a general guide to probate in California, and if you are not using an attorney to take care of your probate, contact the local court in the county of the deceased for full and local information. Some, but not all, of the below language is taken directly from California Court documents. We have added many of our own clarifications to the official language.
Working Toward the Two Probate Hearings
As an overall process, you are working toward two court hearings, widely separated in time, by A) Getting all the documents and interested parties together for the First Probate Hearing, B) Getting the authority to act on behalf of the estate at the first hearing, known as The Probate Hearing, C) Taking control of the estate as the Personal Representative of the estate, D) Creating a fair distribution plan and paying off debts and taxes, E) Getting that plan approved at the second hearing, known as the Judgement of Final Distribution, then F) Distributing the assets and closing down the estate as determined by the court. Breaking it down further:
- Decide if the estate must go to probate. The information in Part I of this article can give you a strong hint, but to be sure, you should consult a lawyer.
- If headed for probate, and there’s a Will, send one copy to the executor and the original will to the Probate Court Clerk in the correct county. Look for the Superior Court Courthouse in the county where the person died, and follow their instructions to find out how to, and who should, lodge the Last Will and Testament with the Clerk of the Superior Court. If there’s no executor, get a copy to a person named in the Will as a beneficiary. If there’s no Will, or you can’t find it, go to the next step.
- File a Probate Petition & Related Documents. Someone, maybe you, now starts the formal probate process by becoming the Probate Petitioner. Ideally, this will be the Executor, but any relative or beneficiary with standing can begin the probate process by filing California Form DE-111. This petition must be filed with the California Superior Court in the County where the deceased resided at the time of their death. The Petition has three basic options, including:
- Petition for Probate of Will and for Letters Testamentary (This is an Executor asking to be named the Personal Representative, see below. The Letters Testamentary give the Personal Representative the power to act on behalf of the estate)
- Petition for Probate of Will and for Letters of Administration with Will Annexed (If the person had a Will but no executor was named)
- Petition for Letters of Administration (if there was no Will)
Along with the Petition, you will be given a goodly number of other forms to fill out, some of which will later be signed by the judge. You may want at least a brief consultation with an attorney at this point, to make sure you fill out these forms properly, and include all the necessary information about potential beneficiaries,, etc.
- The Probate Clerk schedules a first Probate Hearing. Filing the petition and the other paperwork will cause the Court to schedule a first hearing, usually within 4-6 weeks. You will also be given instructions on your next steps.
- The probate information becomes public—beware of scams. It’s important to realize that the Probate has now become a public proceeding. All the financial and other details of the estate will become public knowledge, so you should be wary of potential scams from people who track these things, including people offering to buy properties, etc.
- The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members, even if there is a Will and they are not named in it. The petitioner themselves CANNOT mail this notice. It must be mailed by any other adult who is not a party to the case. The petitioner must also arrange for notice to be published in a newspaper of general circulation. Make sure you have proof that you sent all these notices, and bring it to your first hearing.
- Any person who is interested in the court case may file a Request for Special Notice (form DE-154 ), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate (the Personal Representative, see below).
- THE PROBATE HEARING is held, and a Personal Representative is named. At this first hearing, the Court will decide who will take the rest of the steps of probate, called the Personal Representative (though sometimes called the Administrator or Executor). In the Probate Petition, you merely suggest who that person should be. If the decedent left a Will, the person named in the Will as “Executor” will probably be appointed by the Probate Court to be the Personal Representative of the estate. That means they will be responsible for managing the assets of the Estate and following the probate process properly. Importantly, an Executor cannot act as Personal Representative until they are appointed by the Court through formal “Letters Testamentary,” issued by a Court Clerk.
If there’s no Will (the person dies “intestate”), or if the person named in the Will does not want the job of Executor, the Probate Court will appoint an “Administrator” to pursue the process. That’s usually the closest living relative, or a probable beneficiary.
That’s right, you don’t have to act as Executor if you don’t want to. Discuss it with the judge. From here on, however, we’ll just assume the Personal Representative is you.
- Receive the “Letters” (Form DE 150). After the hearing, the Personal Representative must take the form known as the “Letters” (“Letters Testamentary” if there’s a Will or “Letters of Administration” if there’s no Will) from the court, which authorizes them to take control of the estate’s assets, act on the estate’s behalf, and pursue probate. You will need this document to prove to banks, government agencies, and other institutions that you have control of accounts and deeds. The Clerk of the Court (and not the judge) is the individual who “issues” the “Letters”—and make sure the clerk remembers to stamp the Letters with the purple stamp, not the black one! In essence, this document allows you to act as if you were the decedent in controlling assets. Make sure to request a goodly number of certified copies of your Letters—you are likely to need them. Go to the office of the Clerk of the Court for your Letters, which may take some time, even a week or more, to get signed after your Probate Hearing. Ask about the status of your Letters immediately after your hearing. And remember…the purple stamp, not the black one!
- You may have to post a bond. Often the Probate Court will require you as the Personal Representative to post a bond from an authorized “surety company” prior to the clerk issuing “Letters” to ensure that you properly execute your fiduciary duties as Personal Representative. The cost of this bond from the surety company depends on a number of factors, including the total value required by the court and your own credit worthiness.
- Be prepared for a long haul. Realize you have now started a process requiring a minimum of 4 months, and likely 12 months before your final Hearing and Judgement of Final Distribution. Longer if things get complicated.
- “Collecting” and Protecting Assets, Begin Careful Accounting. The personal representative must now begin taking control of the estate’s assets (a process known as “collecting”), as well as protecting and managing the assets on behalf of the estate. They must also begin keeping a careful accounting of all monies in and out of the estate, with clear explanations of purpose.
- Personal Representative can draw a fee. The Personal Representative may be eligible to begin drawing a fee from the estate for their time. This fee will be set by the court.
- Inventorying Assets. The Personal Representative prepares an Inventory and Appraisal (form DE-160 ) to be filed with the court.
- Probate Estate Referee named. The personal representative usually will also be assigned a Probate Referee by the Court, or will be responsible to find and contact an authorized Probate Referee to value the nonmonetary assets. You can begin here by finding contact information for a probate referee in your county . (Here’s another place to get more information on probate referees .)
- Notice to Creditors. The Personal Representative now provides formal notice to creditors with the Notice of Administration to Creditors (form DE-157 )
- Paying Valid Debts. The Personal Representative must now begin paying off any valid debts owed by the estate of the deceased with monies drawn from the estate. This may include things like funeral expenses. Importantly, the Personal Representative is not personally responsible for these debts, the estate is responsible.
- Deceased’s Final Tax Return Created. The Personal Representative prepares a final personal income tax return for the person who died. Final taxes are paid from the estate. We strongly urge you to use a qualified CPA firm to prepare this return.
- SECOND HEARING: Judgement of Final Distribution. At this hearing, often 6-12 months after the first, a judge decides on the final distribution of assets.
- The Personal Representative distributes the assets. On the basis of the Judgement of Final Distribution, the Personal Representative begins distributing assets according to the dictates of the court’s order. This may be a time-consuming process, and must be completed within a specified deadline. Transfers of property titles must be handled correctly. Some properties may be sold and the liquid assets distributed.
- Report of Real Property Sales. If real estate is liquidated, the Personal representative may be required to file a Report of Sale and Petition for Order Confirming Sale of Real Property (form DE-260 ) so that sales of real property are confirmed by the court.
- Estate Tax Return. If the estate earned any money since the death of the deceased (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return and pay the relevant taxes out of the estate. We strongly urge you to use a qualified CPA firm for this work.
- File a “Final Plan and Accounting.” The Personal Representative files an official report to the court on how the estate was handled. This report is a “Final Plan and Accounting”. The report is scheduled for a hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
- Receipts may be required. After filing with the court any required final receipts to show that everyone received their property from the estate, “the court discharges the personal representative from his or her duties.”
Pro Tips on Probate Dates and Probate Courtrooms
Here are some pro tips on dealing with probate hearings and courtrooms.
- It’s important to know that before any hearing dates are scheduled, you can sometimes negotiate the date with the office of the Probate Clerk. Once any hearing date is scheduled, however, it is extremely difficult or impossible to change. Plan accordingly. Also, be aware that hearing dates are often rescheduled by the court because a judge may be sick, or called away to another matter. So check in advance by whatever method the court provides to be sure your hearing has not been moved.
- Whatever you do, don’t miss a hearing for which you were scheduled. You may lose months as a result.
- Get to the courthouse very early, at least 90 minutes in advance of your call time. You will have to pass through security, and you may encounter other delays.
- Make sure you are not late to any hearing—the judge can lock the doors at 9:16 for a 9:15 hearing.
- While you are waiting to get into the courtroom, make sure to check the “Matters for the Day” usually posted outside the courtroom door to see the status of your case, which will have been pre-reviewed by staff. If it is “recommended for continuance” you still need to stay for your hearing time, but realize that the judge is likely to ask for more information before letting probate continue.
- Patience will be required. You should plan in advance for a long day. You may be called for a “10 am hearing,” but may have to sit and wait for hours before your matter actually comes up before the judge. This may mean sitting through many other people’s probate hearings before yours is called.
Factors that May Slow Your Probate
Along with delays on the part of the court (nearly inevitable), a great many other events may slow the probate process. The most important, of course, is any objection by another party to the way you go about the process. Someone may object to you becoming the Personal Representative, someone may complain about your management of the estate, your accounting, the validity of a Will, or your plans for distribution. All of these may lead to very lengthy court processes indeed, sometimes requiring years to resolve.
Failure to hit any deadline, show up for a hearing, or respond to an inquiry from the court will certainly lead to unwanted and sometimes very lengthy delays of weeks or months. Be prepared.
Remember that the Personal Representative has Personal Liability
If you accept the job of Personal Representative, keep in mind that failing to perform your duty can lead to catastrophic consequences. You may even have to pay for any damages out of your own pocket for problems you caused. You may, for example, be held liable for improperly managing the assets of the estate, overpaying creditors; failing to collect monies due to the estate; selling an asset without the authority to do so, or at an inappropriate price; not filing tax returns on time; distributing assets to the wrong people; distributing assets before creditors and taxes have been paid; and etc.
Legal Help and Representation in the California Probate Process
If you do not wish to handle any or all of the steps in Probate, CunninghamLegal is here to help. Indeed, we can take on the entire process as your attorneys, including representing you at hearings and handling all the paperwork—while keeping you informed at all times.
Our lawyers are deeply experienced in even the most complex of probate situations, including amicably resolving probate disputes among siblings, heirs, and creditors.
And to repeat, CunninghamLegal charges no upfront fees on Probate Representation. We wait until probate is completed and the estate settlement pays our fees.
Please contact us to learn more.
James Cunningham Jr., Esq.
You can complete probate on your own, but an attorney can make the process easier.