|
 Probate Court
 Property Transfers at Death
Simplified Probate
Procedures
FAQ's
- Probate a Decedent's Estate
Probate Process Diagram
Preparing the Petition
Administering
the Estate
Closing and Distributing the Estate
Trusts
Probate
Help for Children
Adoption
Guardianship
Emancipation
Name Change
Minor's Compromise
Protecting
a Child's Assets
Community Resources
Help for Adults/Elders
Conservatorship
LPS Conservatorship
Conservatorships for Developmentally Disabled Adult (Limited Conservatorships)
Medi-Cal
Name Change
Adult Adoption
Dependent Adult/Elder Abuse
Restraining Orders
Financial & Medical Decision Making
Durable Power of Attorney
Health Care Decision Making
Living Trusts
Petitions to Establish Birth, Death or Marriage
Resources & Referrals
Frequently Asked Questions
California Probate Referees
Local
Probate Rules
Probate Forms
Probate
Fees
Finding
a Probate Lawyer
Probate
Terms
Probate
Court Location
Self-Service Home
Main
Court
Site
Case
Info
Site
|
|
Self Service Home | Glossary |
Search |
Site Map | Feedback | Contact
Probate Court
How to Probate a Decedent's Estate
[Esta página está en español;
Trang này bằng tiếng Việt]
This section gives the answers to frequently asked questions about
probate and explains the process to probate a decedent's
estate.
Click on a topic to learn more:
- What is probate?
- Is probate necessary?
- Does all property go through probate when a person dies?
- Should I choose the simplified procedures?
- Do life insurance or retirement benefits need to go through probate?
- Do living trusts go through probate?
- How much does probate cost?
- How long does probate take?
- Where will the probate hearing be?
- Who is in charge of the probate process?
- Who can be the personal representative?
- Who is not allowed to be the personal representative?
- Does the Court supervise the personal representative?
- What does the personal representative do?
- If I am named as executor in a Will, do I have to serve?
- If I serve as executor, will I get paid?
- What happens if the personal representative fails to perform his or
her duty?
- Do I have to use a lawyer for the probate process?
- What if someone objects to the Will?
- Who can contest a Will?
- When can a Will be contested?
- What if there is no Will?
- What happens if we cannot find a Will?
- What if the decedent owned land in more than one state?
- How do creditors get paid?
- If I am a beneficiary and the estate does not have enough money, do I
have to pay creditors out of my own pocket?
- How are taxes handled in probate?
- Am I responsible for paying the rest of my deceased spouse’s bill?
- How can I find out if there was a Will?
- What if someone dies and I have the Will in my possession?
- As an heir, how do I stay informed of what is happening in the probate
case?
- What are the steps in the process to probate a decedent's estate?
- What is probate?
Probate is when the court supervises the processes that transfer legal
title of property from the estate of the person who has died (the
"decedent") to his or her beneficiaries.
Usually, you have to fill out court forms and appear in court to:
- Prove to the Court that the Will is valid (this is usually routine),
- Appoint a legal representative with authority to act on behalf of the
decedent,
- Identify and inventory the decedent's property, and have that property
appraised,
- Pay debts and taxes, and
- Distribute the remaining property according to the terms of the Will or
to the decedent's heirs.
- 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 and life insurance and retirement benefits.
To learn more about these simplified procedures, see the
Simplified Probate Procedures section of
this website.
- Should I choose the simplified procedures?
Not necessarily. Talk to a probate lawyer. There may be debts or tax
claims that make probate a better option for you. If there are a lot of
issues to handle, going through probate allows you to pay the person who
deals with the creditors and taxing authorities.
- 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 to the persons
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. (For more
information, see the Financial and
Medical Decision Making - Living Trusts section of this website.)
- How much does probate cost?
The cost of probate is set by state law.
When all the costs are added up – these may include appraisal costs,
executor's fees, court
filing fees and certified copies, costs for a type of insurance
policy known as a "surety bond,"
plus legal and accounting fees--probate can cost from 4% to 7% of the
total estate value, sometimes more. 
If someone
contests the Will, there could be thousands of dollars of
litigation costs.
For more information, see "How much do I have to pay the Personal
Representative and Attorney?" in the
Closing and Distributing the Probate Estate* section of this website.
*Caution: This link takes you to
another section of the website that is very complex. You may need a lawyer
to help you understand the information.
- 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.
- Where will the probate hearing be?
In California, probate hearings are in the Probate Department of the
Superior Court in the county where the decedent lived at the time of his
or her death. The Probate Department is located in Downtown Superior Court
in San Jose. (Click
for directions, business hours, etc. of Downtown Superior Court.)
If you have to file a probate
petition in another state because there is real property in that state,
the courts in that state may use a different name. In New York, for
example, the probate court is known as the Surrogate Court.
- 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.
For more information, see
Administering the Probate Estate After Appointment.*
*Caution: This link takes you to
another section of the website that is very complex. You may need a lawyer
to help you understand the information.
If the personal representative lives outside of California, the court
may require that s/he get a surety bond (an insurance policy that protects
the estate beneficiaries in the event of the personal representative's
wrongful use of the estate's property), even if the Will waives this
requirement.
- 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.
- If I serve as executor, will I get paid?
Yes. In addition to your out-of-pocket expenses to manage and settle the
estate, personal representatives usually earn a statutory fee of 2% - 4%of
the probate estate. The percentage decreases as the size of the estate
increases.
The Court must approve all fees and expenses. And, in extraordinary
circumstances, the Court may allow other fees.
(See "How Are Fees Determined for the Personal Representative and
Attorney" in the Closing and Distributing the Probate Estate*
section of this website.)
*Caution: This link takes you to
another section of the website that is very complex. You may need a lawyer
to help you understand the information.
Fees are taxable as ordinary income and must be reported on your personal
income tax return. So, if you are the personal representative and the sole
beneficiary of the estate, it usually does not make sense to take any
fees. But, the money you get as beneficiary from the estate is income tax
free.
Talk to a lawyer for more information.
- What happens if the personal representative fails to
perform his or her duty?
The court may lower or deny compensation and can replace the personal
representative with someone else. The personal representative may even
have to pay for any
damages he or she caused.
A personal representative may be held liable for:
- improperly managing the assets of the estate,
- failing to collect claims and money due the estate,
- overpaying creditors,
- selling an asset without the authority to do so, or at an
inappropriate price,
- not filing tax returns on time,
- distributing property to the wrong beneficiaries, or
- distributing property to beneficiaries before all creditors have
been paid, etc.
- Do I have to use a lawyer for the probate
process?
No. But, it may be a good idea if the estate is complex. A lawyer can
help you meet all deadlines and avoid mistakes and delays.
A lawyer can sometimes help avoid disagreements among family members
over minor or major issues. But the lawyer represents the interests of
the personal representative, not the beneficiaries.
You may not need a lawyer if:
- you are the sole beneficiary,
- the decedent's property consists of common assets
(like house, bank accounts, insurance, etc.)
- the Will is simple and straightforward, and
- you have access to good Self Service materials.
In most cases, the personal representative may never see the inside
of a courtroom. But, s/he will have to go to the Court Clerk's office.
- What if someone objects to the Will?
If someone files an objection to the Will, or produces another Will, a
"Will Contest" has begun.
Will contests are not uncommon, but few people actually win one.
Still, they can cost a lot of money and time.
- Who can contest a Will?
Only a person with "standing" can contest a Will. This means the
person must have a personal financial stake in the outcome.
Examples of people with standing to contest a Will are:
- a child or spouse who was cut out of the Will
- a child who receives one third of the estate if a
sibling receives two thirds,
- children who feel that the local charity should not
get all the parent’s assets,
- anyone who was treated more favorably in an earlier
Will.
Sometimes, there is a Will contest because someone wants a
different person, bank, or trust company to serve as personal
representative for the estate, or as a
trustee of trusts created by the Will.
- When can a Will be contested?
Most challenges to Wills are by potential heirs or beneficiaries who
got little or nothing. Will contests must be filed in Probate court
within a certain number of days after receiving notice of the death,
or petition to admit the Will to probate, or issuance of Letters
Testamentary to a personal representative.
Examples of reasons to challenge a Will are:
- there is a later Will which, if valid, would replace the
earlier Will;
- the Will was made at a time the decedent was not mentally
competent to make a Will;
- the Will was the result of fraud, mistake or "undue
influence";
- the Will was not properly "executed" (signed by the decedent);
- the so-called Will is actually a forgery;
- for some other reason (such as a pre-existing contract) the
Will is invalid.
If there is a Will contest, you should hire an experienced
lawyer.
The probate court may invalidate all of the Will or only the
challenged portion. If the entire Will is found invalid, the
proceeds will probably be distributed according to the state laws
of intestacy, unless there is a prior revoked Will that is revived
and admitted to probate.
- What if there is no Will?
If a person dies without a Will (known as dying "intestate"),
the probate court appoints a personal representative (known as an
"administrator").
The major difference between dying testate and dying intestate is
that an intestate estate is distributed according to state law
(known as "intestate succession"). A testate estate is distributed
according to the instructions left by the decedent in his or her
Will.
- What happens if we cannot find a
Will?
If a Will is lost or can’t be found, the specific facts and
circumstances and state law will determine what happens.
For instance, if the Will is missing because the decedent
intentionally revoked it, an earlier Will or the laws on intestate
succession would determine who gets the decedent's estate.
Or, if a Will is missing because it was stored in a bank vault
destroyed in a fire, the probate court may accept a photocopy of
the Will (or the lawyer's draft or computer file), if there is
evidence that the decedent properly signed the original.
- What if the decedent owned land in more than
one state?
The probate laws of the state in which the decedent was a
permanent resident determine who will get the decedent's personal
property (wherever it was located) and the decedent's real
property located within the state. This is why probate is almost
always filed in the decedent's home state.
If the decedent owned real property in another state, that state's
laws determine how the real property will be distributed.
There will be probate in each state where there is real property,
in addition to the home state. Each state has its own method for
distributing the decedent's real property.
Even if there is a Will, the Will is first admitted to probate in
the home state, then it must be submitted to probate in each state
in which the decedent owned real property.
The extra probate procedure is called "ancillary probate." Some
states insist upon the appointment of a personal representative
who is a local resident to administer the property in that state.
- How do creditors get paid?
Part of the probate process is to notify creditors of the death.
Notice requirements vary. In some cases, you must provide direct
notice. In others, you must publish a notice in a newspaper in the
city where the decedent lived.
Creditors must file a claim with the court for the amounts due
within a fixed period of time. If the executor approves the claim,
the bill is paid out of the estate. If the executor rejects the
claim, the creditor must sue for payment.
If there is not enough money to pay all debts, state law
determines who gets paid first. The personal representative most
likely will sell property to pay approved creditor claims.
Remaining claims are paid on a pro-rata basis. (For more
information, see "Creditor Claims" in the "Administering
the Probate Estate After Appointment”*
section of this website.)
*Caution: This link takes you
to another section of the website that is very complex. You may
need a lawyer to help you understand the information.
- If I am a beneficiary and the estate does
not have enough money, do I have to pay creditors out of my own
pocket?
Generally, no. The law says you cannot be made responsible for
others’ general debts without your
consent.
Unless the decedent gave away his or her assets to someone shortly
before dying, or otherwise acted in concert with them to defraud
the creditors, the beneficiaries should not have to pay the
creditors just because they are beneficiaries.
There may be nothing left in the estate for the beneficiaries
after paying the creditors. But, the beneficiaries will not owe
the creditors money.
Still, if the children or beneficiaries took property or benefits
from the decedent or the estate, or assumed liability for care
given the decedent, or guaranteed payment, they can be liable for
some or all of the decedent's debts separately.
- How are taxes handled in probate?
For federal and state tax purposes, death means two things:
- It marks the date of the close of the decedent's last tax
year for filing an income tax return, and
- It establishes a new, separate entity for tax purposes, the
"estate."
For federal taxes, you may have to fill out and file one or
more of the following forms. (It depends on the decedent's
income, the size of the estate, and the income of the estate):
- Final Form 1040 Federal Income Tax return (the
decedent's personal income tax return)
- Form 1041 Federal Fiduciary Income Tax returns
for the estate
- Form 709 Federal Gift Tax return(s)
- Form 706 Federal Estate Tax return
For California taxes, the executor must file any needed
state income tax return, state fiduciary income tax returns
during the probate period, estate tax and gift tax returns.
There may be other taxes, too, like local real estate and
personal property taxes, business taxes, and any special state
taxes.
The executor must also check for taxes owed for years prior to
the decedent's death.
(For more information, see "Taxes" in the
Administering
the Probate Estate after Appointment*
section of this website.)
*Caution: This link takes
you to another section of the website that is very complex.
You may need a lawyer to help you understand the information.
- Am I responsible for paying the rest
of my deceased spouse’s bill?
Maybe. If you and your spouse shared the same bank account and
credit cards, checks, etc., then you may have to pay the bill.
If the credit cards or accounts were opened with only your
spouse’s information as reference, then you may not be liable.
Creditors usually collect their debts from the estate before
the remainder is divided among the heirs. Each case depends on
the circumstances. Talk to an experienced probate lawyer.
- How can I find out if there was a
Will?
First, check with the Probate Court in the county of the state
where the decedent lived.
If the Will was filed, it will likely be available to the
public for viewing. And, you can purchase a copy. Or, you can
hire a local lawyer or legal service bureau to do a search and
get a copy for you.
But many people, even with substantial assets, die without a
Will.
And, if the decedent held all property through a living trust
or a joint ownership arrangement, there may be no need to
probate the Will.
- What if someone dies and I have
the Will in my possession?
The law says you must "deposit" the Will with the superior
court in the county where the decedent lived, even if there
will be no probate. There is no fee involved.
But, the court does not accept Wills for persons who are still
living!
- As an heir, how do I stay informed of
what is happening in the probate case?
You will automatically get notice of certain petitions filed,
including the petition for appointment of the personal
representative and the final petition when it is time for the
estate to be closed and distributed.
If the personal representative wants to sell real property,
you should also get a Notice of Proposed Action. If you want
to get copies of everything filed in the probate court
concerning the estate, file a Request for Special Notice.
There is no fee to file this document.
You can contact the personal representative directly if you
have any questions. You can also contact the attorney for the
estate. But, keep in mind the attorney works for the personal
representative and not the heirs.
If you have concerns about the way the personal representative
is handling the estate, talk to a lawyer.
- What are the steps in the process to
probate a decedent's estate?
Most cases follow these steps:
| Step 1 |
In most cases, the person requesting
appointment as personal representative (executor or
administrator) hires an experienced probate lawyer to
prepare and file a Petition for Probate. In some cases,
the person requesting appointment will handle the
probate without hiring a lawyer, as discussed above.
|
| Step 2 |
The probate lawyer, or the petitioner
without a lawyer, arranges to mail notice to everyone
named in the decedent’s Will (when there is a Will) and
all his/her legal heirs about the death and the probate
hearing.
The notice must also be published in the newspaper where
the decedent lived to let creditors know about the
hearing.
Notice gives everyone notified an opportunity to object
to admitting the Will and to the appointment of the
personal representative. |
| Step 3 |
The hearing usually takes place several
weeks after the matter is filed. The purpose of the
hearing is to determine the validity of the Will and to
appoint the personal representative.
Sometimes, the Court will need the people who witnessed
the decedent's signature on the Will to sign a
declaration.
If there are no objections, the court will approve the
petition and appoint the personal representative. |
| Step 4 |
The personal representative must
identify, take possession of, and manage the probate
assets until all debts have been paid and tax returns
filed. This process usually takes about a year.
Depending on the terms of the Will (if there is a Will),
and on the amount of the decedent's debts, the personal
representative may have to sell real estate, securities
or other property.
For example, if the Will makes cash gifts but the estate
consists mostly of valuable artwork, the art may have to
be appraised and sold to produce cash.
Or, if there are unpaid debts, the personal
representative may have to sell some of the estate
property to pay them. |
| Step 5 |
After paying the debts and taxes, the
personal representative must file a report with the
court. The report accounts for all income received and
payments made on behalf of the estate.
The judge will then authorize the personal
representative to divide the remaining property among
the people or organizations named in the Will. |
| Step 6 |
The property will be transferred to its
new owners. |
Click here to see diagram of the probate process.
It is a good idea to look before continuing.
There are other sections on probate administration at this
website. But the information in those sections is very
complex. You may need a lawyer to help you understand the
information in the sections listed below:
-
Preparing the Petition for Probate
-
Administering the Probate Estate After Appointment
-
Closing and Distributing the Probate Estate
|
|
