An estate going through the probate court.

How Does California Probate Court Work?

  • Posted on: Oct 16 2019
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The probate process is designed to help settle an estate under court supervision in order to ensure that bills are paid and persons lawfully inherit the estate. If someone dies with a will in place (“testate”), it may nominate someone whom the decedent wished to serve as the will’s executor. If someone dies without a will (“intestate”), the court will appoint an administrator. This personal representative has legal authority and is responsible to gather and value the assets of the estate, pay taxes and bills, and distribute the assets to the testate or intestate beneficiaries.

When someone passes away leaving assets behind, those who should not receive those assets may attempt to. Probate serves as a method for preventing fraud by essentially “freezing” the estate during probate administration. The court also ensures that the correct individuals have been notified, that all property has been appraised, and that all creditors and taxes have been paid. After this is complete then the court issues an Order, which allows for the distribution of property listed in the estate and officially closes the estate. 

Some Estates Do Not Go Through Probate Process

Not all estates must go through probate. Estates with particular assets valued below $150,000 are considered to be “small estates,” which do not require court supervision. Additionally, not all assets require probate. Some assets transfer automatically. These include:

  • Beneficiary Designations (e.g. life insurance, annuities)
  • Community Property with the Right of Survivorship
  • Joint Tenancy Assets
  • Pay on Death (POD) Accounts (e.g. bank accounts)
  • Tenancy by the Entirety 
  • Transfer on Death Accounts

If a decedent had a living trust to hold the largest assets, the estate need not go through probate. So long as the assets aside from the trust do not add up to more than the cap for a “small estate,” no probate is necessary.  This makes sense, as the point of a Living Trust is to help avoid probate after the Grantor/Settlor passes away. 

To settle a probate in California, certain conditions must first be met:

  1. If there is a will, it must be filed in the county in which the decedent resided.
  2. A Petition for Probate must be filed.
  3. A notice must be published in a newspaper where the decedent resided.
  4. The Court will issue “Letters Testamentary” or “Letters of Administration to the personal representative to give him or her the legal authority to act. 
  5. The estate assets must be inventoried and that inventory will be filed with the court. 
  6. Taxes and creditors are paid, assets may need to be sold, and then a Petition to close the estate must be filed with the court. 
  7. The Court will then issue an Order, which permits the distribution of the estate’s assets to the beneficiaries. 
  8. The attorney for the personal representative is entitled to receive attorneys fees for handling the legal work involved in probating the estate.  These fees are based upon the value of the probate estate and are established by law.
  9. Lastly, the personal representative is permitted to receive fees for their services, though these fees are subject to income tax.

Contact the Law Offices of Brian L. Fox Today

The Law Offices of Brian L. Fox, APLC helps persons in California to create a proper estate plan before they pass away, and helps their surviving family members to administer their estate after their loved one has passed away.

In the context of probate or trust administration, it is always a safer option to consult with a knowledgeable and experienced estate planning and probate attorney who knows what he or she is doing rather than to do it on your own. This makes the job of the probate court judge, the personal representative, or the trustee easier, and often speeds up the estate administration process while decreasing expenses and frustration. 

If you or a loved one needs estate planning or estate administration advice, the Law Offices of Brian L. Fox, APLC can help. We understand the importance of protecting what really matters. To learn more or to schedule a free consultation, call us today!

Posted in: Probate/Estate Administration