In California, probate is undertaken so that a California court can supervise the administration of a decedent’s estate. This process is initiated when the decedent dies leaving a will (testate) or without leaving a will (intestate). Probate is necessary if the decedent owned any interest in any real or personal property at the time of death.
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The probate process begins by determining if the decedent died leaving a will (testate) or died without leaving a will (intestate). If there is a will, the original must be filed with the court within thirty days after learning of the decedent’s death.
Information Needed for the Probate Process
The next step is to gather information about the decedent’s assets, debts, and any potential heir. The names, addresses, and relationship to the decedent of any heir must be given to the court. This information is used in valuing the estate for the initial petition and preparing an inventory and appraisal at a later stage.
Filing a Petition to Begin the Probate Process
If the decedent died intestate (without a will) a petitioner (usually the nearest relative or the spouse) will request for an appointment as administrator of the estate. If the decedent died with a will, the petitioner will request appointment as the executor of the estate.
An estate can be administered with limited court supervision by requesting authorization to administer the estate under the Independent Administration of Estate Act (IAEA). Electing this type of administration gives the personal representative the ability to conduct most estate transactions without court approval.
Once the petition is filed, a hearing on the Petition is set which is approximately six to eight weeks from the date of filing. The petitioner must send a notice of administration of the estate to all interested parties by mail and this notice must be published in a newspaper of general circulation.
The Hearing on Petition for Probate
At the hearing, the court will first determine if the Petition was prepared properly, notice was properly given and notice was published. If there is a will that is adequately “proved” and not contested, the court will admit the will to probate and direct issuance of the Letters Testamentary. If there is not will (the decedent died intestate), the court will issue Letters of Administration.
Administrative Duties During Probate
Once the Letters are issued, the administrator must then discover, identify, and take possession and control of the assets of the estate. This is referred to as the “marshalling of the assets.” Once the administrator has made a determining of all the estate assets, they must prepare an Inventory and Appraisal (I&A). In preparing the I&A, the personal representative is responsible for appraising the “cash value” of all items located that belong to the estate. This includes any money, checks for wages earned before death and bank accounts. A court-appointed appraiser must appraise all other assets. The I&A should be filed within four months after issuance of the Letters to the administrator of the estate.
Within four months of the Letters being issued, or thirty days after the personal representative has knowledge of the creditors, the personal representative must also give notice of administration to all known and reasonably ascertainable creditors. Therefore, the personal representative must make a diligent search of the decedent’s personal papers to determine if there are any creditors.
The purpose of giving notice to creditors is for them to have the opportunity to file any claim they may have against the estate. Once a creditor is given notice, they must file a claim within four months after the Letters are issued or if notice is given less than sixty days before the expiration of the four months after the Letters are issued, the creditor has sixty days after the date the notice is sent.
If a creditor files a claim, the personal representative must either accept the debt, or reject it in whole or in part within thirty days of the claim being filed.
Completing the Probate Process and Closing the Estate
After the four months or sixty day period for creditor claims has elapsed, the estate can be closed. To close the estate, the personal representative must file a final account reporting the various general charges, credits and transactions in the estate administration and for approval of the accounting, approval of any transactions conducted, request for fees to be paid and for final distribution.
A hearing on the account will be set and notice must be given to all heirs, devisees, and parties requesting special notice and, in some cases, the attorney general and creditors. At the hearing, the court will consider any objections filed and will rule on the payment of fees, distribution, and other matters requested in the petition. The court will then issue an order settling the final account, which will provide for the distribution and payment of fees. Once the representative receives the executed order, they must distribute the estate assets and pay any estate obligations. All distributions should be memorialized by a receipt signed by the party receiving the distribution which is filed with the court.
Order For Discharge
Once all obligations have been paid, all of the assets are distributed, and all receipts are filed with the court, the personal representative can request an order for discharge which will relieve them from any further liability that may incur after the date of the order.
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