Probate

What is Probate

Probate is a court supervised administration of the assets belonging to a deceased person, referred to as the decedent. The process of administration involves collection of the decedent’s assets, payment of the decedent’s debts and taxes, and distribution of the remaining assets to the decedent’s heirs and beneficiaries.

When is Probate Required

As a general rule, a probate proceeding is required when the total value of the real and personal property of the decedent exceeds $150,000. The following property is not included in the calculation of the value of the decedent's property that is subject to probate:

  • Assets held in a trust (e.g., a revocable living trust) specifying a beneficiary other than the decedent's estate
  • Assets held in joint tenancy
  • Separate and community assets passing to a surviving spouse
  • Retirement plans specifying a beneficiary other than the decedent’s estate
  • Life insurance specifying a beneficiary other than the decedent’s estate
  • Life estates in real property
  • United States Savings Bonds

Collecting and Distributing Small Estates

If the total value of the decedent’s assets subject to probate are less than $150,000, then an authorized representative can collect the assets by giving the holder (e.g., a bank, a storage facility, etc.) of the decedent's property an affidavit or a declaration containing the facts that entitle the representative to collect the assets. Following the collection of the decedent's assets, the representative must pay the debts and taxes owed by the decedent and distribute the remaining assets to the decedent's legal heirs and beneficiaries. Since the representative is personally responsible for any mistakes during administration, it is advisable to consult with your attorney throughout the administration process.

The Probate Process

An exhaustive listing of actions that might be required to administer a probate estate is not possible because each probate is unique. However, the following is a listing of the basic steps that must be taken in each probate administration. Because of the complexity of probate and the fact that the administrator or executor is personally liable for mistakes during probate, it is advisable to consult with your attorney throughout the probate process.

  1. Obtain original estate planning documents
  2. Obtain copies of Death Certificate
  3. Advise Agencies to immediately stop payment – Social Security, Dept. of Veterans Affairs, Medicare, Medicaid, Medi-Cal
  4. Obtain asset and liability information
  5. Determine heirs and beneficiaries
  6. File the original will with the Clerk of the Court within 30 days after DOD
  7. Transfer non-probate property (joint tenancy, POD insurance and accounts)
  8. Record Affidavit-Death of Joint Tenant with County Recorder to clear title
  9. Prepare the Acknowledgment of Receipt of Statement of Duties and Responsibilities and file with the Probate Court
  10. Prepare and file Petition for Probate
  11. Serve Notice of Hearing of Petition to Administer Estate and file Notice
  12. Arrange publication of Notice of Hearing of Petition to Administer Estate
  13. File Proof of Publication of Notice of Hearing of Petition to Administer Estate
  14. Clear defects found by Probate Examiner
  15. Attend hearing – or – Call TeleCourt if pre-approved
  16. Prepare Order for Probate
  17. Obtain bond
  18. Prepare Letters Testamentary or Letters of Administration
  19. Serve Notice of Administration to Creditors – within the later of 4 months after Letters are issued or 30 days after personal representative has knowledge of creditor
  20. File Assessor’s documents: Change in Ownership-Death of Real Property Owner; and Parent/Child or other exclusion claim form
  21. Prepare Inventory and Appraisal
  22. Send Inventory and Appraisal to Probate Referee for completion
  23. File Inventory and Appraisal – within 4 months after Letters are issued
  24. Collect and manage estate assets
  25. Handle claims and pay creditors
  26. Liquidate estate property if necessary
  27. Prepare and file Petition for Preliminary Distribution with Accounting
  28. Prepare and file Petition for Final Distribution with Accounting
  29. Serve Notice of Hearing and file Proof of Service of Notice of Hearing
  30. Prepare Order of Final Distribution
  31. Transfer assets and get receipts
  32. Prepare Declaration of Final Discharge – prior to date specified in Order for Probate
  33. Prepare Order of Final Discharge
  34. File Decedent’s Personal Income Tax Return
  35. File Estate Tax Return if required