If you are like most people, when you think about someone dying and probate court, you immediately think of a procedure that is complicated. In California, the reality is that there is not just one probate process available in the judicial system when a person dies. In fact, when considering the probate process in California, there really are a number of possibilities available in the aftermath of a person’s death:
- Testate – simplified
- Testate – formal
- Intestate – simplified
- Intestate – formal
Simplified Versus Formal Estate Process
Many estates that do need to go through the probate process can follow simplified procedures. If an estate is valued at $150,000 or less (and doesn’t have real estate), the simplified probate process if available.
Through the simplified probate process, an estate need not obtain the permission of the court of address matters associated with it. The probate process is started, an inventory of the estate is filed with the court, and the personal representative of the estate has the ability to tend to the affairs of the estate without continually returning to court.
Once bills and taxes are paid, and once the distribution of assets to the heirs of the state are completed, a final report is filed with the court. As long as everything is in order, the probate court approves the final settlement of the estate and discharges the personal representative from his or her duties to the estate and the court.
The formal estate process is more complex. The formal process is used when an estate has assets above $150,000 or the estate includes real estate. When the formal estate process is utilized, there is a greater degree of judicial oversight over the disposition of the estate. For example, if the estate includes real estate, the court will be involved in approving the base sales price of the property. The court will also be called upon to approve a contract for sale or the winning bid if the real property is sold at auction.
In a formal estate process, the court also approves a proposed distribution of assets to heirs after all of the bills and taxes are paid. In addition, the court is also involved in approving the payment of attorney fees to legal counsel hired to represent the estate.
A testate estate is one in which a person died with a last will and testament. In this type of estate process, the will nominates a person to serve as the executor of the estate. The executor must be approved by the court. Upon court approval, the court issues what are known as letters of executorship or letters testamentary, an order from the judge giving the executor the legal authority to tend to the affairs of the estate.
The intestate process is utilized when a person dies without a last will and testament. In the intestate probate process, the court designates a personal representative to manage the affairs of the estate known as the administrator. This power is granted to the administrator via a court order called letters of administration.
Starting a Probate Proceeding
No matter the type of probate process being utilized, this type of case commences with the filing of what legally is known as a petition in the probate court. If the individual died with a will, the original version of the will is filed with the petition for probate itself.
The petition needs to be verified when it is filed with the court. What this means is that there is a clause in the petition that states that the contents of the document are true and correct to the knowledge and belief of the individual who filed the paperwork with the probate court. The verification statement and the petition as a whole are notarized. There is a filing fee to open an estate case in California. The amount of the fee is contingent on the county where the case is being pursued as well as whether it will be a simplified or formal proceeding.
If a simplified estate process is available in a particular situation, an executor or administrator may be able to undertake the task at hand without the need for legal counsel. The state of California maintains probate forms that can be accessed online. In the case of a simplified probate process, the forms involved are relatively simple to complete and prepare for filing with the court.
Generally speaking, if the formal probate process is required for a particular estate, retaining legal counsel is nearly always recommended. The documents that need to be prepared in a formal probate process are more complicated. In addition, the court process itself is more complex. The reality is that even what seems like a minor mistake in the probate process or on a form can have significantly negative consequences. These errors truly are best avoided by retaining an experienced probate attorney.