California Probate Process
Probate Process in California Probate Court
Are you trying to understand the California Probate process? Has someone told you that you need to file a petition for Probate? Have you considered other options? Assuming, Probate is the only answer, the following is a simplified overview of the California Probate process.
Initiating the Probate Process
The first step to initiating the probate process is filing the Probate Petition. All probates must start with filing a Probate Petition. A petition is essentially a request you make to the Court for an order of some kind. Here, the Probate Petition is used to request the Court to appoint you or someone else as Personal Representative of the Decedent’s estate. The person appointed as Personal Representative has control over the Decedent’s estate. Once the Probate Petition is filed, you will receive a hearing date from the Court approximately 35-60 days after the Probate Petition is filed. Once you receive a hearing date, you must give proper notice of the hearing to the potential heirs.
Assuming you have properly filed your Probate Petition, have given proper notice, and no objections are filed, the requested Personal Representative will be appointed. Frankly, most Non-Probate Attorneys and layman fail to properly file the Probate Petition. Currently, the OC Probate Court is so busy that they will not entertain your deficiencies at the hearing and instead will simply continue your hearing date for another 30-45 days. I’ve seen Probate Petitions continued six times due to deficiencies in the filings or improper notice. That’s at least six months of delay! Many of our Probate clients come to us because they simply cannot get past the initial stage of being appointed as Personal Representative.
Appointment of Personal Representative
Once the Court approves your Probate Petition, you will need to submit an Order and Letters to the Court. The Order is the document the Court signs to reflect your appointment as Personal Representative. Letters is the document the Court signs to reflect you have authority to act on behalf of the estate. Similar, but different. Either way, both are needed.
Administration of the Probate Estate
Once you have an Order and Letters in hand, its time to administer the estate. The Court provides some very basic ideas of your duties and liabilities, they include: 1) Manage the estate’s assets; 2) Inventory of estate property; 3) Provide notice to creditors; 4) Obtain adequate insurance; 5) Keep records of your acts; 6) Consult an attorney. Addressing each of these duties is beyond the scope of the article. However, the concept is the Personal Representative steps into the shoes of the Decedent to wind up the estate. The Personal Representative will marshal assets, pay bills and sell or maintain assets so that they may be distributed later.
Once the assets are inventoried and appraised by you and/or a probate referee, you will need to file an Inventory and Appraisal. The Inventory and Appraisal provides the Court with a list and value for all estate assets.
Distribution of the Probate Estate
After the inventory and appraisal is filed and the creditor claim period has lapsed, its time to file a Report, Accounting and Petition for Final Distribution. The Report provides the Court with a summary of the administrative acts you have completed. The Accounting provides the Court with a list of all financial transactions that have occurred during your time as Personal Representative. The Petition for Final Distribution requests the Court to allow you to distribute the assets to the beneficiaries entitled to the estate. Currently, these types of Petitions are being heard 4 months after filing. The Report, Accounting and Petition for Final Distribution is where almost every Non-Probate attorney and layman find themselves in trouble.
There are typically three types of deficiencies here: 1) failure to complete a required act of administration; 2) failure to notify the Court of a completed action of administration; or 3) failure to provide the Court with information in the proper format. Any of these deficiencies will significantly delay the distribution of the estate. However, once the Court approves the Petition for Final Distribution, the Personal Representative can make distributions, file Receipts and request to be discharged as Personal Representative, which effectively closes the Probate.
Finding a Lawyer to Assist You With Difficult Decisions
If you have questions regarding the probate process, or need assistance with the administration or litigation of a probate matter call (949) 371-5003 to speak to the experienced probate lawyers at Modern Wealth Law. John Wong is a California Bar Certified Estate Planning & Probate specialist who has vast experience in probate matters, as well as litigation of estates.
John Wong advises on all aspects of estate planning, probate, asset protection and trust administration. He believes that estate planning is about planning for life; while having protections in place should the unexpected occur.
