The Probate Process
You’ve heard the probate horror stories. You don’t have to be one of them,
if you take the time to plan your estate.
But even if you’ve planned your estate,
let’s look at how an estate is probated (in California) in case you’re faced with a
relative who hasn’t done his/her planning.
In California the probate process
begins in the Probate Court of each county. California law requires that the
decedent’s Will be filed with the Probate Court Clerk in the county
where the decedent resided. The Will must be filed within 30
days after death even if there won't be a probate (for example,
because all of the assets were transferred to a living trust or
because there were insufficient assets to require a
probate)
If there are no assets to probate,
that's the end of the formal court process. But if it is
necessary to proceed, then the next step is to file a "Petition to
Probate Decedent's Estate". The Petition is filed on a
Court form and requires the Petitioner (the person who is filing
the Petition) to fill in certain specific information. For
example, the Petitioner must indicate if [s]he is asking to be
appointed as the Personal Representative or to give the name of the
person to be appointed. The Petition asks for a rough
"guesstimate" of the value of the assets being probated. It
asks for the names and addresses of all of the individuals who are
named in the Decedent's Will (if [s]he had one) and also the names
and addresses of all people who are legally entitled to inherit
from the Decedent under the laws of intestate
succession.
At the same time that the Petition is
filed with the County Probate Court, a Notice of Petition is
prepared and sent to each person whose name and address was listed
in the Petition. A copy of the Notice is also published in a
local newspaper. The Court schedules a hearing date for the
Petition and collects a Filing Fee (the filing fee varies with the
size of the estate. Click here for a list of the
current fees).
The Probate Code states that the
Petition for Probate is to be heard not less than 30 days nor more
than 45 days after the date on which the Petition is filed.
As a practical matter in the larger California counties it is not
unusual to have a hearing date scheduled 60 or 75 days after the
filing date.
