Probate 101: The Basic Steps of Filing a Case in Probate Court – As the world’s pandemic grows, and every level of government buckles down to fight the battle, it is universally accepted that there will be losses and casualties.
But, for South Pasadena attorney William Hayes, any death becomes a new opportunity to ensure that a deceased’s estate is handled swiftly, responsibly and compassionately.
The assets of most who die will require a probate proceeding.
However, a probate court proceeding is not required for the assets of every person who dies. For instance, the following assets would not have to subjected to a probate proceeding in the Superior Court:
• If a person dies while owning assets tilted in joint tenancy with another person;
• if a married person dies with assets titled as community property with a right of survivorship;
• if the deceased person’s assets are titled in a living trust;
• if the person had accounts for which a payable-on-death beneficiary has been named;
• if the assets in the deceased persons estate are less than $184,500. In this instance, the assets can be transferred to the deceased person’s heirs by way of a sworn affidavit.
The Basic Probate Process
However, if the estate in which you are involved does not fall into one of the previously mentioned categories, then a probate petition must be filed in court. Usually the person beginning the court process is a family member or a person with a financial claim against the deceased person.
If there’s a will, there is usually a person designated in the will to act on behalf of the estate of the deceased. When a will is involved, that person would have the title of “executor”. If there’s no will, then usually a family member petitions the court to be appointed and that person is given the title of “administrator”.
The probate process will often require six months to a year before the estate can be closed. Most probate filings are done electronically. However, if there is a will, the original will must be filed with the court. Concurrent with the filing of the will, the estate executor/administrator will file a document titled “Petition for Probate. As of the year 2020, the fee for filing the Petition is $465.
Other supporting documents will also have to be filed and notice of the Petition must be filed in a local newspaper. Additionally, Notice of the Petition must be mailed to all family members within the second degree and to known creditors of the deceased. Once the Petition is filed, the court will set a hearing date for the Petition and if there are no problems or opposition to the Petition, it will be granted and an Order must be submitted to the court for signing. After the Order is signed, a form entitled Letters must be filed with the court appointing as executor/administrator the person who filed the Petition.
In California, creditors have four months to come forward with their claims. Oftentimes estates do not actually receive formal claims from creditors and instead, the executor/administrator simply pays certain of the deceased person’s non-objectionable creditors.
Once the executor/administrator receives authority from the court, the process of gathering and accounting for the deceased person’s assets should begin. The executor/administrator will need to compile and file with the court, an inventory and appraisal of all probate property.
Most probate cases in California are handled under the state’s Independent Administration of Estates Act, which lets the executor/administrator take care of most matters without having to get permission from the probate court. (and following.) The executor/administrator can usually sell estate real estate and personal property, pay taxes, and approve or reject claims from creditors without court supervision.
If you filed the initial petition and requested authority under the Independent Administration of Estates Act, then you can handle most actions pursuant to a form known as a Notice of Proposed Action. On the other hand, if your Petition only requested Limited Administration powers, you would have to seek the court’s approval before you could conduct most actions on behalf of the estate.
During the probate process, it is the executor’s job to keep all assets safe. For example, a house must be insured and maintained, ongoing expenses must be paid and assets must be safeguarded from theft or damage. The executor/administrator is also responsible for filing tax returns for the deceased person and for the estate.
If all this sounds overwhelming, remember that it does not all have to be done at once. It does involve a lot of paperwork, organization, and filings, but most petitioners have attorneys and the attorney handles almost all of the work that has to be done.
The attorney and the executor/administrator of the estate both receive the same percentage of the estate for their services and these fees are not payable until the close of the estate.
Finally, when all bills and taxes have been paid, the executor/administrator asks the court to close the estate. Upon the court’s approval, the executor/administrator can then distribute the estate assets to the heirs.
William K. Hayes is a member of the prestigious American Academy of Estate Planning Attorneys which has been recommended by Consumer Reports, Money Magazine and Suze Orman as a top resource if you are seeking well-qualified estate planning attorneys. The Hayes Law Firm specializes in Trusts, Probate and Medi-Cal Planning. If you wish to attend an upcoming free seminar on one or more of these topics or If you have questions about your administration of a probate estate, you may call (626) 403-2292 or visit The Hayes Law Firm website at LosAngelesTrustLaw.com. Our offices are in the beautiful and historic Baranger Studios Building in South Pasadena. If you’d like a free presentation on these topics for your business or social organization, call and speak to one of our friendly staff members.
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