Published on October 15, 2023

Understanding the Probate Process – A Step-By-Step Guide

Probate is the court-supervised process by which someone’s money and assets (an estate) are distributed to their heirs. It usually takes several months to complete.

Filing the Petition

Property must be distributed to beneficiaries or heirs through probate when a loved one dies. Probate is a requirement in California (and all states) to ensure that the court validates a person’s will, debts paid, and assets distributed according to state law.

The petition for probate must be submitted in the county where the deceased person resided as the first stage in the probate procedure. This is typically done by the Executor/Administrator of the Estate if there is a will or an administrator if there is no will.

The petition includes basic information about the estate and why it is being opened. Skilled probate counsel will often review the petition before the hearing to identify errors or omissions. This is important because once a date is set for a hearing, it can be difficult or impossible to change if the petition contains mistakes.

Notices to Creditors

Suppose the estate has debts (such as loans, utility bills, and credit cards). The personal representative must then inform all known creditors of the decedent’s passing and publish a notice to creditors to identify any unidentified creditors. This is a required part of probate in California and can be time-consuming.

After the creditors are notified, they must file a claim with the Estate, and the personal representative must decide quickly whether to allow or reject the claim. All deadlines and notice requirements must be adhered to to avoid any claims being barred.

The good news is that if the decedent had POD accounts or assets held in their revocable living trust, the Estate may be eligible for a “summary” or “simplified” probate, which can save significant time and expense. However, even in these situations, the personal representative still must follow all the same probate procedures as a traditional “formal” probate.

Inventorying the Assets

You have several legal obligations to fulfill as the Executor of a loved one’s estate under California law. One of the most important ways to identify how long does probate take in California is preparing and filing an Inventory and Appraisal with the probate court.

This is a list of all assets, property, and possessions that make up the Estate, along with a description of each item. This must be done within four months of the date the letter of appointment was issued.

The court will provide the Executor with the proper forms and detailed instructions to complete this task. Breaking the task into manageable parts and completing them promptly is best. For example, doing all online banking, investment, and insurance policy accounts in one sitting is a good idea, while doing the decedent’s house items in another session.

It is also a good idea to include information regarding any non-probate property, such as life insurance or real Estate outside of California, that could be transferred without probate proceedings. Also, if the estate requires a bond, this should be shown during the inventory filing.

Paying Debts

When someone dies, their assets and debts must be distributed according to state law. This requires a process called probate, which is complicated and time-consuming.

Luckily, there are some circumstances where probate isn’t required. This includes estates valued at less than $184,500 in California or assets part of a revocable living trust.

Probate is a process that involves a court and an attorney/executor, who receive fees from the estate. In addition, the person administering the estate must pay creditors before distributing the estate’s assets to heirs.

Creditors have one year to make a claim and may file a lawsuit against the estate. The representative or Executor can choose to pay the claim, or they can dispute it if they think it is not valid. If the creditor is successful, they can collect a judgment against the estate. This is why planning and taking steps to avoid probate is essential.

Notifying Heirs and Beneficiaries

In addition to a duty to pay all creditors, the Executor/Administrator must also notify heirs and beneficiaries of their rights in the estate. This requires ascertaining the identity of the deceased person’s creditors (through a search of mail, credit reports, and bills) and providing them with notice.

Heirs and beneficiaries can also require an accounting from the Executor/Administrator at any time, so all assets must be accounted for. This can be accomplished by keeping all receipts and recording all payments.

Lastly, California law provides a simplified procedure to bypass formal probate for estates valued under a certain amount. However, the Executor/Administrator can only use these procedures if the Court authorizes them. To do so, they must file a Petition for Simplified Probate. If the Court approves, the Executor/Administrator can distribute the remaining estate assets to heirs and beneficiaries.

Finalizing the Estate

The last step in the probate process involves filing receipts with the court confirming that all claims against the estate have been paid. This is followed by a final hearing where the judge will approve the distribution of the estate.

This process is essential to ensure that estate beneficiaries and heirs receive their inheritance according to the deceased’s wishes. Without it, wills may not be enforceable, and property cannot be formally transferred to beneficiaries.

Probate can take anywhere from six months to 1 1/2 years, depending on the size and complexity of the estate. 

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