Starting probate if it is required
by
Philip John Hoskins on Dec. 04, 2015
Summary: Is probate required in your situation? If so, here is how to get started
On this page we discuss initiating the California probate process. For expert advice regarding probate, seek the assistance of Los Angeles estate planning lawyer Philip J. Hoskins. Call us today.
One of the primary reasons Living Trusts have gained popularity is the cost and length of court probate. In Los Angeles, for example the average probate case will take 2 years or more to complete.
This expense and time delay may, however, be worth it. The purpose of probate is to require court supervision over the process of paying your final debts and distributing your property. During this process, your executor or administrator will file documents with the court on each step of the process. The court then will have an opportunity to make certain that everything is handled in a legal manner.
Likewise, the probate process provides for protection for the persons who inherit from you from your creditors. In the probate proceeding, creditors have 4 months after your estate is opened and a notice is published to file any claims. If they are not filed within this period, they cannot later collect the amounts owed. The court approves the payment of any claims and if there is a dispute, the court will settle it.
Alternatives
A Living Trust does not have to go through the court probate process. Assets can be distributed immediately and you can determine what, if anything, the person administering your estate should be paid for their services in your trust.
There are some disadvantages to living trusts, however. Since they are not supervised by the court, there is no guarantee that your estate will be properly handled. There is a provision, however, for beneficiaries to bring the process before the court, however.
Also, the creditor protection available through probate is not available with trusts. Your successor trustee must make certain that all your proper debts are paid before distribution or creditors retain the right to collect from persons who inherit from you after distribution.
Basically, if you have a person who you can trust to follow your wishes, who is capable of handling the required transactions and who has the time and patience to take care of these matters, you can consider using a living trust.
For more information about steps to avoid probate, click here.
When Is Probate Required?
For a discussion of steps you can take prior to death to avoid probate, click here. If these steps have not been taken prior to death, the following is a guide to whether a formal probate is required or if alternatives are available.
Probate Not Required | ||||
| Nature of Assets in Estate | Probate Alternatives | |||
| Property passing by contract (Insurance, IRA's, pensions, annuities, etc.) |  | Contact the insurance company, financial institutions, employer, etc. to complete their forms | ||
| Joint tenancy property | | Clear title, joint tenancy deed, etc. No probate required | ||
| Estate value less than $20,000, decedent leaves surviving spouse and/or children | | File Petition with probate court to set aside estate | ||
| Property passing to surviving spouse | | File Spousal property Petition with court | or | File formal Probate proceeding with court |
| Where none of the above apply | | Where gross value of estate is less than $100,000 | | File petition for order determining succession to property, or for personal property only, collect assets from holder with an affidavit under Section 13100 |
| Where gross value of all real property does not exceed $20,000 | | File an affidavit with holder of real property under section 13200 | ||
In all other cases, a formal probate proceeding is required.
Note: In all cases, the holder of a will must file that will with the superior court clerk in the county where the decedent resided within 30 days of death and must give notice to the person(s) named in the will as executor. No other notice is required to be given of the will, unless probate proceedings are commenced.
Who Can Initiate Probate?
Under California law, any "interested person" may begin the probate process. Generally this will mean any heir, relative, friend or creditor of the decedent. Anyone named as executor or beneficiary in a Will can initiate probate, as can a successor trustee of the decedent's trust. Cal. Probate Code §48.
There may be more than one person who wishes to initiate probate, in which case each would have to take steps to begin the process and the court would decide which to appoint as administrator of the estate.
The probate proceeding is begun by filing a Petition for appointment as Administrator of the Estate. Cal. Judicial Council Form DE-111
When Must a Petition Be Filed?
There is no specific time that a Petition must be filed. However, an executor named in a Will must file a Petition within 30 days of knowledge of death or the court may hold they have waived the right to appointment.
Likewise, any person holding the Will of a decedent must lodge the original Will with the court clerk in the county of decedent's final residence within 30 days.
Where Must the Petition Be Filed?
The petition for Probate must be filed in the county in which the decedent was domiciled (permanent residence) or, if not a resident of California, where he or she has property.
Options in the Petition
There are a number of options on the Petition for probate, many depending upon whether the deceased left a will, whether the will named an executor and whether the will waived the requirement that the administrator post a bond.
The person filing the Petition also has the of asking the court to grant Independent Authority to act. Normally, the law requires that most significant acts by the administrator be approved by the court prior to the act taking place. For example, if the administrator needs to sell the family residence in order to pay bills, or make the distributions called for in a Will, the administrator must first petition the court for the approval of the sale.
As will be discussed in more detail later, this entails a hearing at which others may overbid the successful buyer and results in a court order transferring the property to the eventual buyer. This then gives the administrator security that his or her actions are confirmed by the court and insures against subsequent challenge.
With Independent Authority, the same sale can be done without court approval. The sale, is however, subject to challenge at any time during the probate.
What Are The First Steps?
Along with filing the Petition for Probate, there must be a publication of a Notice of Petition in an approved newspaper in the same county. This gives notice to all creditors and others who may be interested in the estate of the hearing on the Petition and gives them an opportunity to oppose the Petition. Notice must be given to all heirs and beneficiaries, among others.
The court will set a hearing date for the Petition. If everything is in perfect order on the petition, it will be approved. If there are any defects, and unless one is highly proficient in these matters it is likely there will be some, the matter will be continued until they are cured. If there are competing Petitions by different persons seeking to administer the estate, the matter will be set for formal hearing.
After the Petition is Approved
Under California law, the administrator is required to post a bond equal to the value of the estate in order to be appointed. However, the Will of the deceased may waive bond. If so, the Court ordinarily will not require a bond unless Independent Authority to Act (see below) is approved. Usually the bond companies have representatives at the hearing to assist with the securing of a bond.
Independent Authority to Act
In the Petition, authority to act on matters of estate administration may be requested. Ordinarily, most acts of the administrator must be pre-approved by the court. For example the sale of real property requires that a court hearing be set up. At this hearing, the administrator requests approval of the sale to the successful buyer. This sale is subject to any over-bidders at the hearing. The highest qualified bid will get the court's approval and be the final buyer.
The administrator may wish to avoid this hearing and take on the responsibility of finding a buyer on its own. To do so requires that the court have granted authority to act independently. The risk is that without prior court approval of the sale, the administrator may be liable for any underbidding or other defects of the sale.
Finding Out About the Estate
One of the first important duties is to find out what was owned by the decedent and what was owed to others. The gathering of this information is essential for two reasons:
1. The estate's assets must be stated on an Inventory and Appraisal form. This form is prepared by the administrator and appraised by the Probate Referee. The Probate Referee is appointed by the court to appraise estate assets. All assets except a few that have ascertainable value, such as bank accounts, and in some cases personal possessions of the decedent, must be given a value by the Probate Referee. The administrator can give information to the referee to assist in this process, but it is up to the referee to make the determination. The value so determined is gross value, not net of debts. This value will determine what the starting point for the administration of the estate is.
2. By law, creditors have 120 days after the issuance of Letters Testamentary to file any claims against the estate. If not filed within that period, they are unenforceable claims. In order to solidify this protection for the estate, it is useful to ascertain the names and addresses of creditors and give them notice of the probate proceeding. In addition, certain government claims may not be subject to this rule and they must be paid. These include Social Security overpayments and Medi-Cal benefits paid on behalf of the deceased.
Paying Debts
If a claim is filed by a creditor, the administrator must either approve or disapprove it. If approved, it usually can be paid from estate funds when possible. If the administrator believes a claim is not valid, a form must be filed with the court denying the claim. The creditor must then sue the estate.
Other items, such as utility bills necessary to keep estate property in good condition must be paid from estate funds.
Letters Testamentary
Once the Petition is approved and the bond posted, the Court will issue a document called Letters Testamentary. This is a form that is a certificate of the authority of the administrator to act on behalf of the estate. It will be required by several institutions in the process of handling the estates affairs.
