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Probate

Orange County Probate Attorney

Probate Proceedings in California can be difficult to handle, especially while you are dealing with the loss of your loved one.  Our probate attorney has the compassion and knowledge to help assist you through the probate process and settle the personal and business affairs of your loved one.

What is Probate?

Probate refers to the legal process that transfers legal title of property from the estate of the person who has died (the “decedent”) to his or her beneficiaries. In Probate Court, an instrument will be judicially determined to be the executed last will of the decedent, or if there is no will, then Probate is the process where the legal heirs are judicially determined.

In CA Probate Court, a legal representative will be appointed to:

  1. Act on behalf of the decedent
  2. Identify and inventory the decedent’s property
  3. Have that property appraised
  4. Pay debts and taxes, and
  5. Distribute the remaining property according to the terms of the Will or to the decedent’s heirs.
  6. If there is a will, the legal representative is called the “Executor,;” if there is no will then the person is called an “Administrator.”

IS PROBATE NECESSARY?

If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims. When there is property to transfer, the probate process also provides for the distribution of the estate’s property to the decedent’s heirs.

DOES ALL PROPERTY GO THROUGH PROBATE WHEN A PERSON DIES?

No. The term “probate estate” refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person’s “non-probate estate.” California has “simplified procedures” for transferring property for estates worth under a certain amount (from $20,000 to $100,000 depending on the circumstances and the kind of property). There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy or Community Property with Right of Survivorship, and life insurance and retirement benefits.

DO LIFE INSURANCE OR RETIREMENT BENEFITS NEED TO GO THROUGH PROBATE?

No. The benefits can be paid directly to a named beneficiary. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically as long as the persons are named as beneficiaries. Bank accounts that are set up as pay-on-death accounts (PODs) or “in trust for” accounts (a “Totten Trust”) with a named beneficiary also pass to the beneficiary without probate.

DO LIVING TRUSTS GO THROUGH PROBATE?

No. When a living trust holds title to some of the decedent’s property, that property also passes to the beneficiaries without probate.

HOW LONG DOES PROBATE TAKE?

California law says the personal representative must complete probate within one year from the date of appointment, unless s/he files a federal estate tax. In this case, the personal representative can have 18 months to complete probate. If probate has not been completed by that time, the personal representative must file a status report to the court to explain what still has to be done and how much time that will take.

If the personal representative does not report to the court, the beneficiaries can ask the court to order him or her to file an accounting or take other actions to close probate. The court can remove the personal representative and appoint someone else. Sometimes there are circumstances that can make probate take longer.

If there is a Will contest (a claim filed with the court that all or part of the will is not valid), or the size and complexity of the estate requires extra time, or it is hard to find beneficiaries, the process can drag out. Some probate cases take years to resolve.

WHO IS IN CHARGE OF THE PROBATE PROCESS?

If there is a Will, the person named as executor will usually be appointed as the personal representative – this means s/he is responsible for managing the estate and following probate rules and procedures. The executor has no authority to act as personal representative until s/he is appointed by the court and formal “Letters Testamentary” are issued by the Court Clerk.

If there is no Will, or if the Will doesn’t name an executor, or the person named as executor in the Will is unable to be executor or does not want to be executor, the probate court appoints someone called an administrator to handle the process. The Court usually chooses the closest living relative, or a person who will inherit some portion of the decedent’s assets.

WHO CAN BE THE PERSONAL REPRESENTATIVE?

The personal representative does not have to be a legal or financial expert. But, s/he must have reasonable prudence and judgment and be very careful, honest, loyal, impartial and diligent. This is called a “fiduciary duty” — the duty to act with good faith and honesty on behalf of someone else.

The personal representative should have good organizational skills and be able to keep track of details. It is preferable if he or she lives nearby and is familiar with the decedent’s finances. This makes it easier to do tasks and find important records.

WHO IS NOT ALLOWED TO BE THE PERSONAL REPRESENTATIVE?

The following people cannot be the personal representative:

  • A minor,
  • A person subject to a conservatorship or otherwise incapable of performing the duties of personal representative,
  • A surviving business partner of the decedent, if an interested person objects (unless the Will names the partner as executor), or
  • A non-resident of the U.S. (unless the Will names the non-resident as executor).

DOES THE COURT SUPERVISE THE PERSONAL REPRESENTATIVE?

Not usually. But, in some situations the Court requires the personal representative to ask the Court’s permission to sell real estate or business interests owned by the estate.

The personal representative cannot do any of the following things without the Court’s permission:

  • pay fees to himself or herself,
  • pay fees to his or her attorney,
  • make a preliminary distribution of property to beneficiaries (with a few exceptions), or
  • close the estate.

WHAT DOES THE PERSONAL REPRESENTATIVE DO?

The Personal Representative must:

  • Decide if there are any probate assets;
  • Locate the decedent’s assets and manage them during the probate process. This could take up to a year or longer and may involve deciding whether to sell real estate or securities owned by the decedent;
  • Receive payments due to the estate, including interest, dividends, and other income (e.g., unpaid salary, vacation pay, and other company benefits)
  • Set up an estate checking account to hold money that is owed to the decedent — for example, paychecks or stock dividends;
  • Figure out who is going to get what and how much under the will. If there is no will, the administrator will have to look at state law (probate code sections 6400 – 6414, called “intestate succession” statutes) to find out who the decedent’s heirs are and determine each heir’s share of the estate;
  • Value or appraise the estate’s assets;
  • Give official legal notice to creditors and potential creditors of the probate proceeding and the deadlines for creditors to file claims, according to state law;
  • Investigate the validity of all claims against the estate;
  • Pay funeral bills, outstanding debts, and valid claims;
  • Use estate funds to pay continuing expenses — for example, mortgage payments, utility bills and homeowner’s insurance premiums;
  • Handle day-to-day details, such as disconnecting utilities, ending leases and credit cards, and notifying banks and government agencies — such as social security, the post office;
  • File tax returns and pay income and estate taxes – including a final state and federal income tax return covering the period from the beginning of the tax year to the date of death;
  • After getting the court’s permission, distribute the decedent’s property to the people or organizations named in the will, or to the decedent’s heirs if there is no will; and
  • File receipts for distribution and wrap up any closing details for the estate.

IF I AM NAMED AS EXECUTOR IN A WILL, DO I HAVE TO SERVE?

No. If you choose not to serve, the Court will probably appoint the alternate executor to be the personal representative. If there is no alternate executor, or if that person doesn’t want to serve, the Court will appoint someone to serve. The Court usually appoints a capable family member or an independent professional fiduciary.

If you decide to be the personal representative, you can resign at any time. But, you may have to give an “accounting” to the Court for the time you served.

Contact Us Today

Call our Huntington Beach Probate Law Firm today at (714) 847-2500 to schedule a free and confidential consultation.  You can also contact us online.

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  • Huntington Beach Office
    7372 Prince Drive
    Suite 104
    Huntington Beach, California 92647
    Phone: 714-847-2500
    Fax: 714-847-2550