The probate process is probably one of the most archaic procedures we still have in our legal system. Probate simply means to prove-up a Will—it’s the process where a Will is determined to be valid by the Court, it is then “admitted” to probate (as we say), an Executor is appointed and the administration of the decedent’s assets begins.
Probate also applies where there is no Will, then the Court determines that no valid Will exists, an Administrator is appointed, and the administration of the decedent’s assets begins.
Sounds pretty straightforward, until you run face-first into the procedural wall of probate. There have been many times when I have been asked by non-lawyers “can I do the probate myself?” My response is: yes. This is America, anyone can represent themselves in Court—for the most part. There are a few exceptions to that rule, but a simple, uncontested probate can be handled by the Executor. All you need to do is know all the rules, procedures, and arcane terms of probate…well maybe its not so simple after all.
In fact, there are plenty of lawyers who have a hard time navigating the probate process. The rules that have been established over many centuries (yes, some of our probate laws/rules are that old) are not intuitive to understand. And if you don’t comply with the process, then your probate dies a slow death in Probate Court.
But still, it’s not impossible. It just takes a good amount of homework and an extra large dose of patience. And every probate can be broken down in three main parts (1) Starting the probate process, (2) administering the estate, and (3) closing the estate.
1. Starting probate. To start a California probate you have to file a petition with the Court. A petition is just a way of asking the Court to do something—in this case it’s to open a probate. There are other forms that go along with the petition too. Once you prepare the petition, you file it with the Court and the Court will give you an initial hearing date for sometime in the future. Once you have that date, you have to serve Notice of Hearing on all persons named in the Will AND all heirs at law. You also have to publish notice of the probate in the newspaper before the hearing date.
If all goes well and your papers are in order, then the Court will grant the petition, sign the Order opening probate, and issue Letters (either Letters Testamentary for an estate with a Will, or Letter of Administration for intestate estates (that’s estate’s with no Will)).
2. Administering the estate. Once the California probate estate is opened all estate assets must be gathered and inventoried and appraised. All cash can be appraised by the Executor, but any other assets, such as stocks, bonds, real estate, etc. must be appraised by the Court appointed probate referee.
Creditor’s of the decedent must be noticed, property sold or positioned for distribution, and any estate bills paid. If someone claims to be a creditor, but the Executor believes the claim to be invalid, then there may be a lawsuit to determine which claims are appropriate to be paid.
Once all creditor’s are paid and assets are either sold or positioned for distribution, its time to close the estate.
3. Closing the estate. The final petition that must be filed in a California probate is a report by the Personal Representative, which usually includes an accounting of the estate assets and a request to distribute the estate assets to the appropriate heirs.
The estate accounting is the trickiest part of this equation because it must be prepared in a manner that complies with Probate Code Section 1060 et seq. And an estate accounting is unlike any other type of accounting. So you have to find someone who knows how to properly prepare this type of accounting.
The final petition also asks for compensation to be paid to the Executor and the estate’s attorney. Both the Executor and the attorney are entitled to the same fee, which is a sliding scale percentage of the estate’s value. The fee equals:
4% of the first $100,000 of value $4,000
3% of the next $100,000 of value $3,000
2% of the next $800,000 of value $16,000
1% of all amounts up to $5 million $50,000
Most probate estates are not $5 million in value. However, a typical estate worth $500,000 would result in a fee to the Executor of $13,000. The estate’s attorney would receive the same amount, $13,000.
Navigating your way through the California probate process is not impossible, its just time-consuming and, at times, frustrating. But take a deep breath and see what you can do. If all else fails, you can always hire an attorney to take the probate to the finish line.