You are far from alone if you shudder when you hear the terms “estate” and “probate.” Of course, you may initially repel when you hear these terms because they necessarily are associated with dying and death. California law has been crafted to make the probate process as simple and manageable as possible.
This comprehensive presentation is designed to provide you with everything you need to know about the California probate process. The hope is that this one-stop resource provides you a clear understanding of the key aspects of the California probate process. In addition, this informational resource is intended to be a tool you can take advantage of throughout the probate process.
Two General Types of Probate in California
The most basic fact you need to understand about the probate process in California is that there are two general ways in which a deceased person’s estate is dealt with in the state. First, a person’s estate can be dealt with via the terms set forth in a last will and testament. Second, if no will was made by the deceased individual, the laws of the state of California dictate what will happen to a deceased individual’s property.
Estates with a Will
If the individual who passed away prepared a last will and testament, that legal instrument governs how a person’s property is distributed after he or she died. A key part of a will is the designation of what is legally known as an executor. An executor is the individual that is charged with the responsibility of carrying out the wishes of the person who wrote the will. An executor named in a will typically is a family member. Many times it is the executor who begins the probate process, oftentimes because that individual has access to the will.
If the executor in unavailable, a California probate court has the power to appoint a successor or substitute executor to address the affairs of the estate. A probate court can designate a family member or some other individual that was close to the deceased individual in life. The court can also appoint an attorney to serve as the executor of the estate.
Estates without a Will
If a person dies without having written a last will and testament, California law contains provisions regarding how that individual’s estate is addressed after death. The laws of the state delineate how and to who that individual’s property or assets will be conveyed after his or her death.
The probate court selects an individual to oversee the affairs of the deceased person’s estate. This person is called an administrator. In the end, an administrator and an executor undertake the same tasks and have the same authority, despite the different titles. Oftentimes, a probate court appoints a family member to serve as the administrator of the estate of a person who had no will. In the alternative, the court might also elect to appoint a California attorney with probate experience.
The Job of an Executor or Administrator
The most important fact to bear in mind if you are called upon to be the executor or administrator of an estate in California is that you will have what legally is known as a fiduciary duty. Cornell University School of Law has a succinct and accurate definition of fiduciary duty, which is applicable in estate and probate matters across the United States, including in the state of California. A fiduciary duty is defined as:
“The highest standard of care. The person who has a fiduciary duty is called the fiduciary, and the person to whom he owes the duty, is typically referred to as the principal or the beneficiary.”
In the case of a probate case, the executor or administrator is the fiduciary. The principals or beneficiaries in a probate matter include the estate itself as well as the heirs of the deceased individual. In the final analysis, an executor or administrator of an estate must act honestly, diligently, fairly, and with the interests of the beneficiaries of the estate itself being the prime consideration above all else.
As mentioned previously, the job of an executor or administrator is to oversee, or manage, the affairs of the deceased person’s estate during the probate process. As will be discussed in a bit more detail in a moment, the tasks associated with serving as an executor or administrator include identifying and gathering the assets of the estate, paying all lawful bills due and owing (using funds from the estate to do so), and distributing the property, including money, of the estate in accordance with the last will and testament or California law (depending on the specific circumstances of the case).
In some instances, the will indicates that an executor is paid for his or her efforts. In other situations, particularly is the estate is small and the executor will benefit by obtaining some of the assets of the estate, no fee is paid. When the court appoints an administrator if there is no will, that person typically will be paid something in the way of a fee.
In many instances, a last will and testament will designate a person to serve as the executor of the estate with the notation that he or she can serve without bond. This means that the executor does not need to be bonded by a surety company to serve in that capacity. A bond essentially is a type of insurance that would compensate the estate if you made some sort of mistake or did something improper while serving as the executor. The estate itself pays the cost or premium associated with the bond.
In the case of an estate without a will, a probate court will determine whether or not a bond will be required of the executor. If the estate is not particular large or complex, a probate court might consider forgoing a bond at its discretion.
The executor or administrator of an estate does make a time commitment. At a minimum, there is paperwork to complete, bills to pay, and property to be given to appropriate individuals. On average, an executor’s duties last about six months. If the estate is particularly simple, the time period can be a bit, but not significantly, shorter. On the other hand, if the estate is complicated, an executor or administrator can end up serving in that capacity for a period beyond that six-month mark.
Preparing and Filing a Petition for Probate
The first step in starting a probate case is filing a Petition for Probate at the appropriate county courthouse, in the Probate Division. (You will find below a list of some of the larger Southern California courthouse, with address and contact information.) You can obtain the Petition for Probate form approved for use in California Probate Courts online at: www.courts.ca.gov/forms.
If the deceased individual did prepare a last will and testament, the original version is to be filed with the Probate Court along with the Petition for Probate. If the original will is not available for some reason, this is a situation that warrants consulting with a qualified probate attorney to discuss. California probate lawyers typically do not charge a fee for an initial consultation.
After a Petition for Probate is filed, the court will review the case. A hearing is schedule before a probate judge. Provided everything is in order, the Probate Court issues what are known as Letters Testamentary or Letters of Administration. These are court orders which give the executor or administrator of an estate the legal authority to act on behalf of the estate.
One of the first tasks of an executor or administrator of an estate is to submit an inventory on a standard form to the Probate Court. The inventory is an itemization of the basic assets and debts of the estate.
Probate and Creditors
Rarely does someone die without owing money to some entity. One of the initial steps taken during the probate process is the payment of legitimate debts owed by the estate. Examples include outstanding medical bills associated with a deceased person’s final illness or cause of death. These also include the costs associated with the funeral, burial, or cremation of the deceased person.
Legally speaking, creditors of an estate have a four-month window from the date the estate is opened by the court to file what are called claims for payment. If a creditor misses the deadline, it is precluded from obtaining payment by the estate.
An executor or administrator is not personally responsible for any debts of the deceased individual and the estate. The only exception would be if the executor or administrator and the deceased person were jointly indebted to some entity prior to the decedent’s passing. The same principle holds true for other family members of the person who has passed.
Probate and Taxes
Any taxes due and owing must also be paid by the estate as part of the probate process. For example, the deceased individual may owe income taxes that accumulated during his or her last year of life and are paid by the estate during the probate process.
The current exemption for federal estate taxes is over $5 million. In other words, only assets of an estate over the $5 million mark would be subject to estate taxes.
Depending on the value of property, or the amount of money, distributed to specific individuals via the probate process, federal inheritance taxes may need to be paid. This tax liability oftentimes is deducted from the amount of money paid to a particular heir of the estate.
If estate or inheritance taxes may be due and owing in a probate case, consulting with a tax specialist oftentimes is advisable. If a mistake is going to be made in the probate process, odds are it is going to be in the area of taxes, if no professional assistance is sought. The costs associated with seeking tax accounting assistance is paid by the estate.
Unlike some states, California has not state estate or inheritance tax. Thus, there is nothing to address in this regard during the probate process.
Is a Lawyer Necessary?
A lawyer may not be necessary in a California probate case. The vast majority of California probate cases are pursued under the Independent Administration of Estates Act, which is discussed further in a moment.
Probate courts in California utilize standardized forms for nearly anything that can arise during the probate process. Official forms are found at: www.courts.ca.gov/forms.
If an estate is complicated, or if there is some sort of dispute raised by a potential heir to the estate (which does not happen all that often), the service of a lawyer would be advisable, even necessary.
California law has established caps on what an attorney is paid for his or her work on behalf of an estate. A lawyer is paid a percentage of the total value of the money and property calculated to be in the estate. Fees are paid by the estate. At the present time, this is the attorney fee structure adopted for California probate cases.
- 4% of the first $100,000 of the gross value of the probate estate
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9 million
- .5% of the next $15 million
Streamlined Probate Processes in California: California Independent Administration of Estates Act
The majority of estate cases in California are handled through the California Independent Administration of Estates Act. This law does require the filing of a Petition for Probate. However, this law permits an executor or administrator the ability to tend to all of the affairs of the estate without having to go back to court for approval before taking specific steps. For example, an executor or administrator can sell real estate without getting pre-approval from the court for doing so.
Once all of the business of the estate is tended to, an executor or administrator does return to Probate Court and submits a final report, on a standard form. A probate judge approves the final settlement of the estate’s business and discharges the executor or administrator from their position with the estate.
In some instances, no type of probate proceeding is required. Currently, if the total value of the assets of an estate (property and money) is $150,000 or less, no probate proceeding needs to be initiated. The individuals entitled to inherit from the estate sign a simple sworn statement that they received assets to which they were entitled.
California Probate Court Contact Information
Los Angeles County Probate Court
Stanley Mosk Courthouse
111 North Hill Street
Los Angeles, California 90012
Michael Antonovich Antelope Valley Courthouse
42011 4th Street West
Lancaster, CA 93534
Kern County Probate Court
1215 Truxtun Avenue
Bakersfield, CA 93301
Orange County Probate Court
Central Justice Center
700 Civic Center Drive West
Santa Ana, CA 92701
Riverside County Probate Court
Banning Justice Center
311 East Ramsey Street
Banning, CA 92220
Santa Barbara County Probate Court
1100 Anacapa Street
Santa Barbara, CA 93121
San Bernardino County Probate Court
246 West Third Street
San Bernardino, CA 92415
Venture County Probate Court:
Hall of Justice
800 South Victoria Avenue
Ventura, CA 93063