If your loved one recently passed, you may be experiencing a tremendous amount of grief and be emotionally overwhelmed. However, you might also have certain responsibilities during this difficult time and be required to deal with the property and assets they left behind. Probate is the legal process by which your loved one’s estate will be administered — and you may have many questions about how the process works, as well as when it’s required.
Here are several questions that are commonly asked about the probate process:
The probate process can be started by submitting a petition to open probate with the court, along with filing a copy of the decedent’s will, if one exists. The court will then determine who the personal representative of the estate will be. Next, beneficiaries and heirs are identified, and the personal representative will make a list of all known assets belonging to the decedent. Additionally, creditors must be notified by mail or published notice that probate has been opened and have an opportunity to file a claim if they are owed money.
Anyone with legal standing may raise a challenge to the will within 120 days from the date probate was opened. As part of the probate process, the personal representative will be responsible for paying all legitimate creditor claims and filing taxes. After probate has been closed, and with court authority, the personal representative can distribute the assets to the heirs and beneficiaries.
Whether there is a will or not, probate is almost always required in California. However, there is an exception if all the property in the estate was payable on death, placed into a living trust, jointly owned, or community property assets left to a surviving spouse. In such cases, probate may be avoided. In addition, simplified probate procedures may be used if the total value of the estate was less than $184,500, without real property.
Every estate is different and the time it can take to complete the probate process can vary widely. However, for estates that go through the simplified probate procedure, the time can be greatly reduced. Importantly, creditors have four months to make a claim against an estate — this is the minimum amount of time an estate must stay open. While the probate code requires final distribution orders to be filed within a year (or 18 months if federal estate tax returns must be filed), the timeline can be longer if the will is being challenged. In California, it is rare for a probate to take less than 12 months.
Probate is handled in the Probate Department of the Superior Court in the county where the decedent lived at the time of their passing. If property was owned outside of the state, a probate proceeding will have to be opened in that jurisdiction — this is referred to as “ancillary probate.”
In order to contest a loved one’s will, you must have legal grounds to do so. In other words, you cannot simply be unhappy with the assets that were left to you. In California, there are four primary ways a will can be challenged. Generally, you must 1) raise a question about the decedent’s testamentary capacity at the time of signing; 2) raise a question about undue influence in the drafting or execution of the will; 3) demonstrate the will does not comply with state law; or 4) prove the will is fraudulent.
Under California’s probate code, a personal representative may be compensated in an amount specified by the court, or by an amount stipulated in the decedent’s will, if applicable. The probate code specifies that a personal representative may receive 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the following $800,000, and 1 percent of the next $9 million dollars for ordinary services provided. They would also receive one-half percent of the next $15 million dollars and a reasonable amount as determined by the court for anything more. If actions outside the normal scope of probate are required, the personal representative can also request “extraordinary fees,” and it will be in the court’s discretion whether and how much to award the personal representative in excess of the ordinary fees. This same compensation structure also applies to the attorney for the estate.
Probate can be costly, depending upon the complexity of the case. In addition to the above statutory personal representative fees, there are also court fees, attorney’s fees, and probate referee fees that must be considered.
Although you aren’t required to retain an attorney for probate in California, having legal counsel can make the process much easier. It’s usually beneficial to have a lawyer by your side who can assist you with navigating the legal process and protect your rights. A probate lawyer can save you time, help you avoid stress, and ensure you receive the full inheritance you are entitled.
If your loved one’s estate must go through probate, it’s critical to have a skillful California probate lawyer who can advise you and guide you through the legal process. The attorneys at White & Bright, LLP have extensive experience handling a broad range of estate administration and probate litigation matters in California. Call us at (760) 747-3200 or fill out our online contact us form to schedule a consultation to learn how we can help.