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  • Grant A. Toeppen

California Probate Process Explained- Introduction

Updated: Jul 6, 2020

Time-consuming. Expensive. Burdensome. Frustrating. These are words that many people associate with probate. At the same time, many of these same people have only the vaguest of ideas as to what’s actually involved in the probate of a decedent’s estate, or when one is even necessary.

In the broadest of strokes, the probate of an estate is the legal process of getting someone appointed to act on behalf of the estate, and then that person shall marshal the decedent’s assets, paying his/her debts and then distributing assets to the decedent’s heirs. The process usually takes 6-12 months, with various court filings, notices to creditors, and other procedural deadlines that need to be followed. An experienced California probate attorney can greatly simplify the probate process.

The probate of an estate involves multiple court filings, hearings, the publication of the probate hearing in a court-specified local newspaper, high statutory attorney’s fees, complex procedures, and typically a final accounting. At the end of the day, the probate of an estate worth $500,000 can easily cost more than $27,000 in California. Local rules for each county vary widely, making preliminary research invaluable so as to predict costs and prevent unnecessary court continuances. What’s worse, the public nature of a probate can make private family business public.

There are some perceived benefits of probate. For instance, probate offers a judicially overseen administration of an estate. While many people use living trusts and other estate planning techniques to avoid a probate, individuals are not being watched over by a judge and do not have to account to a judge unless someone files a petition with the court. In highly contentious families, some practitioners argue that a probate might be preferable so as to ensure judicial oversight (note: I respectfully disagree with these practitioners, especially considering these same attorneys usually greatly benefit from California’s statutory fee structure).

As this series of articles will lay out, there can be a lot more to a probate than paying debts and distributing assets. Proving and contesting wills, breaches of fiduciary duty, insolvent estates, complex accountings, and many more issues exist. We will address the following issues (at least one a week):

  • What Triggers A Probate?

  • How Can You Avoid A Probate?

  • Part 1: From The First Action Steps To The Probate Hearing

  • First Steps When Someone Dies: Gathering Information, Action Steps

  • Determining Estate Assets, Acting To Safeguard When Appropriate (Stocks, Guns, Etc.)

  • Filling Out The Probate Petition

  • Filing The Probate Petition

  • Actions To Be Taken After Filing Petition

  • Publication

  • Notice

  • Bond

  • Letters

  • Probate Notes

  • Complications With Filing A Probate Petition

  • Will Contests

  • Lost Wills/Revoked Wills

  • Holographic Wills

  • Priority Of Appointment Of Personal Representative

  • Proving A Will

  • Local Forms

  • Duties Of Beneficiary

  • IAEA

  • Part 2: From The Hearing For Appointment Of The Personal Representative To The Final Petition For Distribution

  • Inventory And Appraisal

  • Listing Of Assets- Format

  • Notices To State Agencies

  • Maintaining Records

  • Potential Liabilities Assumed Of Beneficiary

  • Spousal Elections

  • Funds To Protect Family, House, Spouse, Kiddos, Etc.

  • Testamentary Trusts

  • Probate Exemptions

  • Heggstad Petition

  • Medi-Cal Claims And Collectability

  • Creditor’s Claims

  • Application Sale Encumbered Party

  • Order Of Creditors

  • Abatement And Exoneration

  • Sale Of Real Property/Court Approved Processes

  • Actions Requiring Notice Of Hearing

  • Actions Requiring Hearing Even Under IAEA

  • Part 3: From Drafting The Final Petition To Final Discharge

  • Final Accounting

  • Hearing On Petition For Final Distribution

  • Recordation Of Orders

  • Final Discharge And Withdrawal

The information on this website is not being presented legal advice, nor should it be construed as such under any circumstances. Legal advice would be telling you what to do or advocating for a particular course of action, whereas legal information just breaks down how the law and legal procedures work. Nothing in this article should be taken to create an attorney-client relationship. If you believe you need legal advice, you should reach out to an experienced attorney immediately.

Advance Planning, A Law Corporation, is an estate planning law firm based in Manteca, California that serves Clients in the San Joaquin Central Valley and throughout California. You can come to us if you need help with estate planning such as wills and trusts, probate, and conservatorship matters.

Copyright Advance Planning, A Law Corporation 2019. All rights reserved.

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