The subject of this article is the basic uncontested probate procedure in California. The discussion will briefly describe the procedures and issues for an uncontested estate in California.
The word succession generally refers to what happens to a person’s property when they die. The purpose of probate is to see that the debts and taxes of the deceased person, known as the deceased, are paid and that the remaining property reaches the rightful owners.
Assets held solely in the name of the deceased are called probate assets and generally require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate process is commonly called an executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then the children, etc. It generally takes a minimum of 6 to 9 months to complete a formal probate court proceeding.
Certain assets do not go through a formal probate process, such as death pay accounts at banks, sometimes referred to as “Totten trusts,” certain accounts that name a specific beneficiary or beneficiaries with brokers and other financial companies, the proceeds from life insurance policies, certain retirement accounts such as IRAs and other types of property held in joint possession, or community property with the right of survivorship, etc. If the gross property value of the estate is less than $ 150,000 as determined by an probate arbitrator, no formal probate is required. Instead, a special petition is filed with the Court to determine the succession of movable and immovable property; This procedure is much simpler and faster than a formal probate. There is also a very simplified procedure that can be used if the estate is just real property with a gross value that does not exceed $ 20,000 as determined by an probate arbitrator.
If there is a will, a probate petition and letters of will must be filed. If there is no will, the petition is called a petition for probate and letters of administration.
Once the probate petition has been filed, a notice of petition to administer the estate must be published in a legal or “adjudicated” newspaper that publishes probate notices. The notice must be posted prior to the probate petition hearing. The first publication must begin at least fifteen calendar days before the hearing. All beneficiaries and other persons named in the will must be notified by mail of the petition to administer the estate at least fifteen calendar days before the hearing.
In most undisputed cases, the will waives the bond or all of the heirs sign a bond waiver. Most courts will waive the bond if everyone has signed a waiver, especially if only limited authority is requested under the Independent Estate Management Act. Limited authority means that the executor or administrator cannot sell any real property or encumber any real property without obtaining the court’s permission, and any real estate sales must be confirmed by the Court and a special notice posted. If full authority is requested, most courts will require a bond, as well as when the proposed executor or administrator is not a California resident.
Note that every surety firm the author has ever dealt with have refused to post a bond for someone who is not represented by an attorney. Depending on the particular case, there may be ways to avoid or at least greatly reduce the need for a bond. This includes depositing money or other property, such as stocks, into a blocked account, and withdrawals are not allowed unless a court order is obtained. There are other ways, such as the use of personal guarantees, but these methods are rarely used due to their complexity.
Full authority means that the executor or administrator does not have to obtain the court’s permission to sell any real property or encumber any real property. Instead, they must notify all heirs, beneficiaries, and others entitled to notice with a Notice of Proposed Action that describes in detail what they plan to do; the notice must be delivered at least fifteen days before the proposed action. If someone objects, the Court will hold a hearing on your objection.
At the probate petition hearing, if no objections have been received, the Court will appoint the executor or administrator, and will also appoint an probate arbitrator to appraise certain real estate such as automobiles, real estate, and other types of property that are not have an easily determinable cash value, such as stocks, bonds, etc. Cash in the bank is appraised by the executor or administrator.
Notice must also be given to creditors. Even if there are no creditors, a notice must be served with the California Franchise Tax Board. Any creditor notified has up to sixty days after notification or four months after the letters are issued to file a creditor claim. The executor or administrator must approve the claim in whole or in part, or reject the claim. If a creditor’s claim is denied, the executor or trustee must wait three months after the denial notice is served before a final distribution request can be filed.
Once all creditor claims have been resolved, and after at least four months have elapsed since the letters were issued, a final distribution petition may be filed.
The final distribution petition will generally request that the Court approve all actions taken by the executor or administrator, and must provide a complete accounting of the estate unless all heirs or beneficiaries have waived the accounting. The petition must also list the current value of all estate property and all heirs or beneficiaries entitled to ownership of the estate, as well as the percentage they will receive. In addition, if the executor or administrator requests your legal fee, or attorney’s fee, a detailed breakdown of how the proposed fee is calculated must be included in the request.
If the court approves the final distribution petition, the judge will sign an order. Then, once all the heirs and beneficiaries have signed a receipt indicating that they have received all the property to which they were entitled, the receipts are filed with the Court along with an Ex-Parte Petition for Final Waiver requesting that the Court dismiss to the executor or administrator. . Once this is done, probate is over, if a bond was issued, the surety company will cancel the bond once they have received a copy of the Final Discharge Order.
If you like this article, please tell others.
Sincerely,
Stan burman
Copyright 2012 Stan Burman. All rights reserved.
Please note that the author of this article, Stan Burman is NOT an attorney and as such cannot provide any specific legal advice. The author does NOT undertake to provide any legal, financial or other services, and the information in this article is NOT intended to constitute legal advice.
Stan Burman has prepared these materials and information in this article for informational purposes only and do not constitute legal advice. The transmission of the information contained in this article is not intended to create, and receipt does not constitute, any commercial relationship between the author and the reader. Readers should not act on this information without seeking professional advice.
No Comment