The California Probate Process
When Is Probate Required in California?
Probate is a legal process required to settle an estate after someone dies. It ensures that assets are distributed according to the deceased’s wishes and that all debts are paid. In California, probate may be necessary under specific circumstances, and understanding when it is required can be essential in proper estate planning:
Decedent’s Sole Ownership — When a person dies owning assets in their name alone, valued more than the California probate limit
Lack of Designated Beneficiaries — If there are no designated beneficiaries or a valid trust
Ambiguous Will — If there’s a dispute over the will’s interpretation or validity
Assets Subject to Probate
Not all assets are subject to probate, but knowing which ones are can save time and costs. In California, the assets that require probate typically include items owned solely in the decedent’s name or assets where no beneficiaries are named. Here are some common examples:
Real Property, such as homes, land, or other real estate
Financial Assets, including bank accounts, stocks, and bonds
Personal Property, such as cars, jewelry, artwork, and other valuable items
Exclusions may include jointly owned assets and those with designated beneficiaries.
Probate Exemptions
Some assets and conditions allow for an exemption from the probate process in California. This can greatly expedite the settling of an estate and lower the costs involved. Here are some typical probate exemptions:
Joint Tenancy Properties held in joint tenancy with rights of survivorship
Life Insurance Policies with named beneficiaries
Retirement Accounts, such as 401(k)s and IRAs with named beneficiaries
Pay-on-Death Accounts, including bank accounts and investment accounts
Common Probate Costs
Understanding the costs involved in the probate process is crucial for both planning and the estate’s executor. Costs can vary widely based on the estate’s complexity and the efficiency of the proceedings. In California, probate costs can include:
Court Filing Fees required for various legal documents
Publication Fees for legally required notifications
Bond Premiums, which are sometimes required to protect the estate’s assets
Appraisal Fees for valuing estate assets
Professional Services, including legal or accounting fees
Top Factors That Impact Probate
The probate process can be complex, and various factors may impact how smoothly it progresses. Recognizing these factors can help prepare for potential challenges and reduce the risk of delays. The main factors include:
Complexity of the Estate: A diverse or extensive asset base can complicate the process.
Disputes: Disagreements among beneficiaries or creditors can lead to legal challenges.
Tax Issues: These can Include unpaid taxes or disagreements with taxing authorities.
Time: The efficiency of the executor or administrator and other logistical factors can impact how long the process takes.
California Probate Process: An Overview
California probate can be broken down into three separate phases:
Phase one encompasses gathering information, preparing the initial paperwork, and attending the hearing on the petition.
Phase two involves itemizing and inventorying property, reviewing and paying creditor claims, and filing tax returns.
Phase three deals with closing the estate and distributing the assets to the beneficiaries.
Once everything has been completed, the court’s last step is to formally release the appointed representative of their duties and responsibilities in the probate proceedings.
For specific details of each phase of the probate process, refer to the following California probate step-by-step guide for the self-represented:
California Probate Step-by-Step Guide For The Self-Represented
PHASE 1
Locate decedent’s will or trust, if there is one
Prepare a complete address list of all named executors, trustees, beneficiaries, and heirs
Check local rules in the court where the probate is to be filed for special forms required in the probate proceedings
Determine an appropriate legal newspaper for the statutory publication
Prepare and file probate petition
Arrange for publication of notice to creditors in local newspaper
Send notice of hearing to all interested parties
Review probate notes at least a week before the hearing on probate
Prepare and file any necessary supplements to address comments in probate notes
Attend hearing on probate
Obtain and file probate bond, if necessary (bond requirement may be waived with full cooperation of beneficiaries and proper request)
File and get 2-3 certified copies of letters authorizing executor (if there is a will) or administrator (if no will) to act on behalf of estate
Obtain conformed copy of order of probate
PHASE 2
Send notice to all known creditors
File statement of death of real property owner (BOE 502-D) with county assessor
Request assignment of probate referee (if not automatically done by the court)
Contact probate referee to complete inventory and appraisal
File inventory and appraisal.
Wait creditor period (unless otherwise ordered by the court, creditors have 4 months after issuance of letters within which to file claims against the estate)
Accept and/or reject claims and pay creditors
File any required tax returns
PHASE 3
Obtain waivers of final account from all beneficiaries
File petition for final distribution and order (earliest is 4 months after date letters are issued)
Review probate notes at least a week before hearing on petition for final distribution
Prepare and file any necessary supplements to address comments in probate notes
Attend hearing on petition for final distribution
Distribute assets to beneficiaries and get signed receipts
Record order of distribution in county where all real property of the estate is located
File signed beneficiary receipts with court
File ex parte discharge of executor or administrator
Frequently Asked Questions
How long does the probate process take in California?
Typically, probate in California takes about 9 to 18 months. Factors such as disputes among parties and complexity can extend this timeframe.
Is it possible to avoid probate in California?
Yes, through proper estate planning using trusts and beneficiary designations, probate can often be avoided.
What triggers probate in California?
Probate is typically triggered when a person dies owning assets solely in their name without designated beneficiaries when the total value exceeds the California probate limit.
