Probate FAQ

Q: What is “probate?”

A: Probate is a court-supervised process concerning the administration and management of an individual’s final affairs.  Generally a will describes how the assets of the deceased will be distributed.  However, when a person passes away without a will, the court will often distribute the person’s remaining estate.  In California, the probate process is supervised by the Probate Department of the Superior Court for the county that the deceased lived in.

Q: How is probate started?

A: Although technically any beneficiary is permitted by law to initiate a probate proceeding, normally the person who has been named executor in the will begins the process by filing the original will with the clerk of the court and then filing a Petition for Probate of Will.

No will existed at the time of death, then normally the surviving spouse or child of the deceased will file a Petition for Letters of Administration. A hearing is then set for the matter by the court clerk, and copies of the petition are served by first class mail on all relatives of the deceased (to the second degree). Then, a hearing is conducted and the judge rules on the petition and authorizes the executor to act as executor or appoints a personal representative to act if no executor was named by the decedent.  A personal representative will also be named if the executor appointed does not wish to act or cannot act.  If multiple petitions for probate or petition for letters of administration are filed, then the Judge will determine who will serve as the personal representative.

Q: Who selects the executor?

A: An executor is usually appointed in a will to carry out the wishes of the testator upon their death.  This personal representative is normally a family member or close friend, with an alternate choice also appointed.   In order to guarantee that the chosen executor is aware and willing to assume the responsibilities of the position, it is best to advise them of his or her duties before the testator passes away.  Duties of an executor include: filing necessary tax and court documents for the estate, consolidating and managing the testator’s assets, selling property to pay any estate taxes or other expenses, and also collecting any debts that may be owed to the testator at his or her death. Explore the corresponding sections for information on the role of an executor, how to choose an executor, and an explanation of what an executor does.

Q: Must the executor hire an attorney and who pays the attorney’s fees?

A: It is in the best interest of the estate to hire an experienced estate-planning attorney to assist you in your duties as an executor or personal representative. Although probate forms are publicly available, they are difficult to fill out and the probate process in general is extremely complicated. Many find that it very helpful and less stressful to work with a knowledgeable attorney during the probating of a loved one’s estate.

Q: Does the personal representative get paid and, if so, how?

A: A statutory formula is provided in California law for payment to both a personal representative and their attorney based on a percentage of the value of the assets of the probate estate, as appraised by the Probate Referee.  These fees are known as “statutory fees.” In some instances where the estate is extremely large or complicated, the court may order that extra fees be paid.

Q: What assets are subject to probate?

A: All assets that the deceased owns at the time of his or her death will be subject to probate unless the asset has been placed in a form that allows it to avoid the probate process.  For example, some accounts held in joint tenancy, certain accounts held by a trust, payable on death accounts those assets are not subject to probate and thus pass outside of probate court.  Also, some assets that pass by means of a beneficiary like retirement accounts or life insurance policies can avoid probate as long as the beneficiary is not the estate of the deceased.

Q: How is distribution of the estate handled if there is no written will?

A: Survivors of the deceased could face a very time-consuming, difficult and expensive legal process if a person dies without creating a legitimate will or without making any alternative plans to distribute their estate.   If a person dies without a will, this leaves their estate “intestate,” which may require a probate court to step in and divide the estate by utilizing legal defaults that give the property to surviving relatives.  The court will first pay any unpaid debts and death expenses, then follow the default legal guidelines.

If the deceased has not immediate surviving family members, the estate will be divided amongst other known relatives.  As a result of intestacy, people who the deceased never intended to leave property to may receive a part of the estate.  In addition, intestacy laws only recognizes family members, therefore charities and close friends of the deceased will not receive any portion of the estate.  If no relatives can be found, typically the estate will go to the local or state government.  Intestacy also comes with the possibility of large taxes on the estate.

Q: Who is responsible for paying estate taxes?

A: Both the State and Federal government collect a large amount of money through estate taxes.  The threshold for the value of assets that may pass free of estate tax constantly changes.  Nine months after the deceased’s day of death, the IRS Form 706 (the Federal Estate Tax return) must be filed.  A similar form for the state of California must be timely filed.  It is the executor or personal representative’s responsibility to ensure that the estate taxes are paid.  If there is no probate then the decedent’s next of kin must file the estate tax returns.  Normally the estate’s assets will be used to pay these taxes.

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