Expert Legal Assistance Throughout the Probate Process
If you or a loved one’s estate is subject to probate in Los Angeles or San Bernardino courts, William K. Hayes should be strongly considered as your probate counsel. With over 30 years of experience in handling probate cases, our team will help the executor to file the necessary paperwork and to comply with the often-complicated rules required to process an estate through the probate courts.
Depending on your case, we may even be able to suggest procedural alternatives and shortcuts, such as a spousal property petition, small-value estate declaration, and/or trust property petitions under Probate Code 850, which can save money and time.
A full probate administration requires creditor notification and a four-month claim period, and typically takes 12 to 18 months to complete.
Probate counsel is especially needed when there are unresolved legal issues (such as heirship under the intestate succession laws), when the estate is insolvent (e.g., with distressed real estate as the only asset), or when a gift has been procured through undue influence (e.g., a gift to a caretaker under the presumption of undue influence).
California Probate Court Process
BASIC PROBATE PROCESS
- Foundation for probate. A person dies with or without a written will. You can avoid probate by having a trust or an estate that is too small to probate.
- Appointment. If there is a will, an executor is appointed; If no will, an administrator is appointed. They perform essentially the same tasks.
- Management of assets. The executor or administrator takes steps to secure the deceased’s property (notifies banks, employers, etc. of the death; if necessary has utilities turned off, cancels newspapers, seals the house, etc.). The executor or administrator does not pay any debts or distribute any property at this time unless the court grants them Independent Powers of Administration.
- Court filing. A petition for probate is prepared. (The executor/administrator’s attorney prepares the petition, which is filed with the original copy of the will, if any.) At that time, the executor/administrator secures a federal tax identification number for the estate.
- Newspaper notice. Mandatory with probate. This tells people of the death and that the estate is being probated and that creditors have a fixed amount of time (usually no more than four months) to come forward or be forever barred. Known creditors must be given direct notice.
- Notice by mail. Mail notices to heirs, beneficiaries and all known creditors.
- Hearing for probate. Usually about six weeks after the probate petition is filed.
If there is a will, the judge will decide on the validity of the will. If valid, the will names the beneficiaries who will take the estate after creditors and taxes are paid. At the hearing, the judge signs “letters testamentary” or “Letters of Administration” allowing the executor/administrator to sell or change title to the deceased’s property.
- Bond. If there is a will, often the deceased person will have waived the requirement of a bond for the executor. If it has not been waived in the will, a bond will usually be required by the court. If there is no will and the administrator is a California resident and if the beneficiaries sign the appropriate waivers, the judge may decide that no bond is required for the administrator. If a bond is required and the executor or administrator has been granted “independent full powers” by the judge, the bond premium will usually be much higher than if the executor or administrator has only been granted “limited powers” in which case the premium would be much lower. Executors and administrators must have independent powers if it is their intention to sell real or personal estate assets and pay creditors without the supervision of the court.
- Inventory the estate. For significant assets other than cash, an appraiser (known as a probate referee) will be appointed by the court to appraise the assets. After the assets are appraised, the inventory is then filed with the court.
- Court supervised sale of real estate. If real estate owned by the estate is required to be sold under the supervision of the court, notice must be sent to all beneficiaries and others who have requested to be notified. A buyer is obtained and notice of the intent to sell the property must be published in the paper. An auction sale is held in open court with others present who have seen the newspaper notice and also wish to bid for the property. This process may be avoided if the executor/administrator has independent powers of administration and gives appropriate notice to all interested persons.
- Pay creditors. If there is not enough money in the estate to satisfy all creditors, payments are made in the following order:
- Executor/administrator’s fee
- Attorney’s fee
- Reasonable funeral expenses
- Family allowance (usually a fixed sum of money for maintaining the deceased’s spouse and dependent children while will is being probated).
- Homestead allowance (generally an amount needed to pay the normal upkeep of the home while the will is being probated.
- Exempt property- a surviving spouse or children have a right to a fixed dollar value (varies from state to state) of deceased’s tangible property, such as the car, furniture, paintings, etc.
- Taxes (fiduciary tax on estate’s income)
- All outstanding medical expenses
- All other claims
- Estate tax. Pay federal estate tax, if any. This is due nine months after death.
- Petition for distribution of the estate. The executor or administrator presents the final accounting to court.
- Final Hearing. The judge reviews the executor or administrator’s petition for final accounting and distribution and if approved the estate may be distributed but it will not be fully effective until the court signs a written order to that effect.
- Distribution. The estate is distributed to the heirs, beneficiaries and creditors and each must give a written receipt.
- Final Discharge.
The attorney files a petition to relieve the executor/administrator of her/his duties