7. How Does the Probate Process Work in California?
When the decedent passes away, a decedent's will is located and filed with the court along with a document entitled "Petition for Probate". Also, if the decedent died without a will, a Petition for Probate is also filed so that the laws of intestate succession (see that section) can apply. Once the Petition for Probate is filed, the court sets a hearing date approximately 45 to 60 days after the date of filing. During that period, notices are sent to all interested relatives and a publication occurs (generally in a legal newspaper) advising creditors and potential heirs of the filing of the estate and the death of the decedent.
At the hearing, if there is a will, it is generally admitted to probate at that time and an executor is appointed to represent the estate. If there is no will, an administrator is appointed to represent the estate. Any objections to the will or to the appointment of the representative of the estate of the estate are generally lodged with the court at the hearing.
Once the representative of the estate is appointed, the representative gathers all of the assets of the estate. For example, the representative will go to the bank and transfer the bank accounts of the decedent into a bank account in the name of the estate. An Inventory and Appraisal of all of the assets of the estate is prepared. Then, if necessary, the representative, usually through the estate's attorney or accountant, prepares and files the Federal Estate Tax Form 706. Also during this period of time the Creditor Claim period begins to run. Generally, the creditors of the decedent will have four months from the date that the representative is appointed in which to present/file a claim to be paid by the estate for any debts due to the creditors by the decedent. If the creditors fail to file a claim within that time, then the creditors are forever barred from making a claim against the decedent.
Once these time periods have run, the Inventory and Appraisal has been filed and all estate tax forms (if necessary) have been filed with the IRS in the State of California, the estate can be closed. The representative, along with the attorney and/or accountant, prepares a final accounting. This accounting is attached to a Petition for Final Distribution that is filed with the court and set for hearing. At the hearing, the court will approve the Petition and based upon that approval, issue its Order of Distribution. The representative of the estate then distributes all of the remaining property on hand of the estate, in accordance with the judge's Order. Once all property has been distributed and receipts have been signed by all of the beneficiaries or heirs for the property they receive, the representative files a document requesting that the representative be discharged as the estate's representative and the estate is formally closed.
The reality of the situation is that during the entire estate administration, the attorney will take all of the information from the representative/client and prepare the legal documentation that needs to be reviewed and signed by the client and shift as much of the burden away from the representative as is reasonably possible.
