Experienced Probate & Trust Administration Attorneys
- Settle your loved one’s estate.
- Guidance through the legal process.
Probate in California: Self-Help or With an Attorney
Probate can be done on your own, without an attorney. We’ve provided the steps below on how to start the process independently, without legal representation. However, if you would rather have a professional, Serva Law Group is here to help take on the entire process as your attorneys, including representing you at hearings and handling all the paperwork—while keeping you informed at all times. We have extensive expertise and can effectively address the most intricate probate scenarios, including the resolution of disputes involving siblings, heirs, and creditors.
Probate, Generally
When a loved one passes away, the task of transferring their assets, including homes, vehicles, and other possessions, to their heirs, which may include you, becomes necessary. Unless the deceased is your spouse who passed away, or unless the assets are held in PODs (Payable on Death accounts) or a valid Living Trust, you will likely need to go through the Probate Court process.
But what does “Probate of Will” entail? To probate a Will or initiate the probate of an estate means to follow specific procedures within a specialized Probate Court before distributing the assets. The probate process involves numerous steps, each precise and ordered. Similar to most legal proceedings, every detail must be executed correctly, and in the correct sequence.
If you serve as the executor of someone’s Last Will and Testament, this responsibility falls upon you. You are legally obligated to carry out the probate process honestly and diligently, or you may face legal consequences.
To begin with, any assets that have been properly placed into a valid Living Trust should not have to go to probate. Instead, these assets can simply be distributed by the new Trustee as specified in the Trust document.
Other assets that don’t have to go to probate with proper beneficiary designations in place include: life insurance payouts; assets held in banks and investment firms that include Payable on Death (POD) or Transfer on Death (TOD) beneficiaries; and most jointly owned assets between spouses.
Probate costs in California are set by state law and encompass a wide range of expenses. These expenses may include court fees, executor’s compensation, property appraisal expenses, charges for certified copies of documents, accounting fees, legal expenses, and potentially an insurance concept known as a surety bond. In most cases, these expenses are anticipated to amount to between 4% to 7% of the total estate value. However, if there is a Will contest or disputes arise among beneficiaries regarding asset distribution, the expenses are likely to escalate significantly and may require several years to be resolved.
You are not supposed to independently execute the instructions of a Will without going through the probate court proceedings. If you are not the spouse or the legal Trustee of the estate and you simply take possession of assets, such as cash or a vehicle, or withdraw funds from the deceased’s account, you could potentially face legal consequences, even if you hold the position of executor. Also understand that if you have been named as the executor but fail to take the necessary steps to commence the probate process, you might also be personally responsible for any resulting expenses incurred by the estate and the financial repercussions affecting the heirs of the deceased individual.
A Recap of Probate
At the most fundamental level, the objectives of Probate include:
- Verifying if a Will exists and whether it is valid
- Determining who are the heirs or beneficiaries
- Appointing the appropriate person to be in charge of closing out the estate
- Making a list of all the decedent’s assets and calculating how much it’s worth
- Taking care of the decedent’s financial debts and liabilities, including taxes owed
- Transferring the decedent’s property to the heirs or beneficiaries
The Steps In Probate
California Probate, Step-By-Step
- Check if probate is required for estate assets.
- If needed, submit the Will to the Probate Court Clerk. If there’s no Will, proceed to the next step.
- File a Probate Petition (Form DE-111) with the local Superior Court. Choose the appropriate petition type:
- Petition for Probate of Will and for Letters Testamentary (Executor request)
- Petition for Probate of Will and for Letters of Administration with Will Annexed (No named executor in the Will)
- Petition for Letters of Administration (if there was no Will)
- Expect the court to schedule a first Probate Hearing (usually in 4-6 weeks).
- Keep in mind that probate details become public, so be cautious of scams.
- Give notice of the hearing to all potential beneficiaries, surviving family members, and publish notice in a newspaper of general circulation.
- Allow interested parties to file a Request for Special Notice (Form DE-154).
- Attend the Probate Hearing where the Personal Representative is appointed (Executor or Administrator).
- Obtain the “Letters” (Form DE 150) from the court, granting control over estate assets.
- Consider posting a bond through a surety company if required.
- Be prepared for a lengthy process that typically takes at least 4-12 months, potentially longer, before reaching your final Hearing and Judgment of Final Distribution.
- Take control of estate assets, protect them, and maintain detailed financial records.
- The Personal Representative may receive a fee set by the court.
- Prepare an Inventory and Appraisal (Form DE-160) for court submission.
- A Probate Referee will be named to value nonmonetary assets.
- Notify creditors with the Notice of Administration to Creditors (Form DE-157).
- Begin settling and paying off valid debts using estate funds, such as funeral expenses.
- Prepare the deceased’s final income tax return, paid from the estate.
- Attend the second hearing for the Judgment of Final Distribution (usually 6-12 months later).
- Distribute assets according to the court’s order within specified deadlines.
- If liquidating real estate, file a Report of Sale and Petition for Order Confirming Sale of Real Property (Form DE-260).
- Submit a final estate tax return, if applicable, and pay any due taxes from the estate.
- File a “Final Plan and Accounting” report for court review.
- Provide required receipts to confirm property distribution, and the court will discharge the Personal Representative from their duties.
Speed Bumps in Probate
Be prepared for various setbacks, some that may be completely out of your control, that may slow your probate. In addition to court-related delays, which are nearly unavoidable, several other factors can hinder the probate process. Among these, the most significant is objections raised by other parties regarding your handling of the process. These objections may pertain to your appointment as the Personal Representative, your management of the estate, your financial record-keeping, the validity of the Will, or your proposed asset distribution plan. Such objections can result in lengthy court proceedings, sometimes spanning several years.
Additionally, failing to meet deadlines, attend hearings, or respond promptly to court inquiries will undoubtedly result in undesirable and potentially lengthy delays, ranging from weeks to months. It's essential to be well-prepared to navigate these potential challenges.
If You are the Personal Representative – You Have Personal Liability
If you take on the role of Personal Representative, it's crucial to remember that failing or neglecting your responsibilities can result in severe consequences. In fact, you might find yourself personally liable for any harm caused, potentially having to cover damages from your own resources. This liability could arise from various scenarios, such as mismanaging estate assets, overcompensating creditors, neglecting to collect funds owed to the estate, selling assets without proper authorization or at an inappropriate price, failing to file tax returns promptly, distributing assets to incorrect recipients, disbursing assets before settling debts and taxes, and so on.
Trust Administration
Under California law, the Successor Trustee has specific obligations to fulfill during the trust administration process, including the responsibility of carrying out the terms of the trust document. For starters, the Successor Trustee is mandated to adhere to the guidelines outlined in the California Probate Code regarding the issuance of certain notifications to individuals and entities. For example, formal notice must be sent to all trust beneficiaries and heirs at law, following the format prescribed by the probate code. These notices must be sent within 60 days from the date of the death. Furthermore, the Department of Health Care Services, and possibly other government agencies, must also receive formal notifications. Failing to fulfill these notification requirements could expose the Successor Trustee to legal liability.
The Successor Trustee is also responsible for ensuring the Last Will is properly submitted to the appropriate court. In cases involving real estate held within the trust, measures must be taken to transfer the property titles into the name of the Successor Trustee.
Additionally, it falls upon the Successor Trustee to collect and protect all trust assets, satisfy the claims of estate creditors, and address any tax-related matters adequately. The trust might necessitate a distinct taxpayer identification number as well. Once all administrative tasks, appraisals, bill payments, and tax return filings have been completed, the Successor Trustee may proceed to distribute the trust assets to the beneficiaries, aligning with the trust’s provisions.
Sub-trusts often arise in the administration of trusts established by married couples. A common example is an AB or ABC trust, implemented for tax planning purposes. In this scenario, upon the death of the first spouse, the assets of the deceased spouse are retained for the use of the surviving spouse but placed in an irrevocable trust. Managing such trusts can be more complex, and it is highly recommended to seek proper guidance during this process.
Furthermore, certain trusts may involve children’s trusts for minor beneficiaries, special needs trusts for beneficiaries with special needs, or other ongoing trusts that continue beyond the trustmaker’s death. Each of these trusts comes with its unique requirements with respect the trust administration process.
