Probate refers to the process of settling a person's estate after they have passed away. It ensures that debts are repaid and that assets are given to the correct beneficiaries.
Typically, the person listed as the executor of the estate in the will is responsible for handling the probate process. If there is no will or the person named as executor isn’t available, the probate court will name someone to handle the process—such as a close relative or the person who stands to inherit the bulk of the estate. The length of time this takes can vary, but most estates can be probated in six months to one year.
Steps Involved in the Probate Process
1. File a Probate Petition
Probate begins with a petition asking that the court legally acknowledge you as the executor of the estate. This petition should be filed in the county where the deceased lived at the time of their death and accompanied by a copy of the death certificate and the will.
Being legally acknowledged as the executor of the estate gives you the authority to sell estate property, pay taxes, and approve or reject claims without court supervision under California’s Independent Administration of Estates Act. However, it’s important to note that you will need court approval to sell any real estate owned by the deceased.
2. Inventory Assets
Once you have the legal authority to settle the estate, you must collect and inventory assets subject to probate. This includes personal effects, bank accounts, retirement accounts, real estate, and stocks and bonds. If the deceased owned valuable jewelry, antiques, art, or collectibles, an appraisal may be needed to determine their worth.
Note that assets owned in joint tenancy with someone else, as survivorship community property with a spouse, or in a living trust are not subject to probate. Accounts with a payable-on-death beneficiary are also exempt from the probate process.
If the value of the probate assets meets California’s requirements for a small estate, the full probate process is not necessary. Assets can then be transferred with a small estate affidavit under Probate Code §13100.
3. Collect Payments and Satisfy Debts
Any money owed to the estate must be collected as part of the probate process, including paychecks, rent payments, and investment income. Outstanding bills must be also paid, including costs for medical care and any applicable taxes. California law gives creditors four months to come forward with claims.
In most cases, it’s recommended that you set up a separate estate bank account for paying these expenses. If there isn’t enough money in the estate to pay all debt, creditor claims are prioritized in an order outlined in California Probate Code § 9050.
4. Distribute Any Remaining Assets
After all debts have been paid, any property that remains should be distributed to heirs as outlined in the will. If the deceased person had no will, the property is distributed according to intestacy laws that determine the closest living relative. Typically, this means that a spouse or children inherit the property.
5. Close the Estate
Once everything has been distributed, the executor submits receipts and records to the court. The estate is then closed, and they are formally released from the role of executor.
Schedule a Consultation With Our Probate Attorney
The probate process can be time-consuming and requires great attention to detail. Working with a probate attorney can ensure that your loved one’s estate is handled correctly and that all assets are distributed as desired.
San Diego Legacy Law serves clients throughout San Diego, as well as those in La Jolla, Del Mar, Rancho Santa Fe, El Cajon, Poway, Spring Valley, Chula Vista, Santa Rosa, Petaluma, Novato, and Healdsburg. Contact us today to schedule a consultation to discuss your probate needs.