Wills and estate plans are the last things anyone wants to think about after a death in the family. Still, when a loved one dies, the process for distributing their belongings becomes an important step towards final closure, both in the personal and legal sense.
All states require that a probate court oversees the distribution of assets within a decedent’s estate to some degree, with some states taking on a Uniform Probate Code, such as the California Probate Code.
In contrast, others have their own code based largely on the same legislature. How lengthy or invasive the probate process is for any given estate depends on its size, debts, estate plan, and mutual agreements between legal heirs.
An Overview of the California Probate Code and Process
In California, the probate process is governed by the rules of the California Probate Code. In general, however, the process goes much as it would in other states:
- A petition is filed through the courts using the decedent’s death certificate.
- Their estate is consolidated and evaluated.
- Debts and outstanding tax liabilities are addressed and paid, and the remainder is distributed.
Each step requires that a personal representative or close relative/friend of the decedent advances the process. The probate court itself usually only provides the necessary legal authority, supervision, and venue. While probate is almost always required whenever someone dies with something to their name, there are ways to circumvent, expedite, and avoid the process – even without a will.
Beginning the Probate Process
In California, probate begins through a petition with the California Superior Court in the decedent’s county of residence. A hearing will be scheduled in about thirty (30) days from the petition date. This also triggers multiple hearing notices, published in local newspapers and elsewhere, which must be individually sent to heirs mentioned in the will. If no will exists, the notices must be forwarded to legal heirs instead (based on intestate laws in the California Probate Code). In general, this means next of kin.
Authenticating the Will
Once the actual probate process begins, one of the first business orders is validating the will. The term probate itself refers to the decedent’s legal wishes and estate plans, in the sense that the process exists to authenticate documents detailing how the decedent would like their belongings to be distributed after death.
Today, many wills are “self-proving,” as they include legal language or a signed affidavit from witnesses to the will, meaning the document need only be presented to the court rather than validated officially. However, if no will exists, the decedent will have died intestate. This means that assets will be divided and distributed automatically based on the estate’s size and nature among the decedent’s surviving family members (beginning with their spouse and children).
Some assets are automatically distributed after death and are thus usually exempt from probate, such as properties and assets owned jointly with a right of survivorship, life insurance policies and accounts with designated beneficiaries, and trust entities that hold and manage living beneficiaries’ funds. These would be distributed even if no will exists.
Appointing an Executor
Once a will (or lack thereof) has been authenticated, the next important step is to name a personal representative to the estate. This representative is also known as the estate’s executor. Their job is to manage the estate’s affairs, from addressing debts and liabilities to the successful and proper distribution of the estate’s contents to its rightful inheritors.
Executors may be named in the will as well, but if no executor is named, the court will pick one based on the family’s decision and their ability to perform their duties competently. In some cases, a third party such as an attorney may be named the estate’s personal representative.
This is where probate bond comes into play, financially ensuring the estate should the executor make an error, intentionally or unintentionally. Once chosen, an executor’s authority will be granted through the letter’s testamentary.
Consolidating the Estate
Once an executor has been named, the next task on the list is to consolidate the estate – taking a full inventory of everything the decedent left behind and reviewing insurance policies, financial information, and outstanding payments on properties and assets.
This can take a fair bit of detective work for the uninitiated and is a task made much simpler through a little estate planning on the decedent’s side. Part of taking stock of the decedent left behind includes evaluating it at the decedent’s death time.
For larger assets, this might mean hiring a professional valuator/appraiser to get an accurate basis on the decedent’s vehicles, homes, properties, jewelry, and more. The total value of an estate is integral to determining whether it needs to go through an extended probate process, to begin with. Smaller estates at or below a total value of $166,250 (sans specific exceptions) can opt for an expedited probate process.
Debts and Final Tax Returns
Once the estate has been properly valued, the next step is to notify creditors and pay off outstanding debts. Creditors have four months in California from the date of their notice to file a claim against the estate before the estate can move on.
Outstanding bills, payroll, the final tax return, and other financial details need also be arranged using the estate’s cash flow before any distributions to the beneficiaries can occur. Once all claims and debts have been dealt with, the remainder can be distributed as per the estate’s plan or intestate law.
How to Shorten the Probate Process
Probate can be shortened by reducing the size of your estate before death. This can be done through gifting, transferring assets into irrevocable trusts, and assigning beneficiaries to vehicles, properties, and accounts. A shortened probate process means fewer costs, fewer complications, and a swifter path towards closure and healing.
However, depending on a person’s wealth, achieving an expedited probate process can take a fair amount of planning. If you are worried about how the length and costs of probate might affect your family should something happen to you, it would be in your best interest to consult an estate planning professional.