Probate Basics

Last edited 29 days ago by Ted Broomfield

Summary: This blog is aimed at no-attorney administrators and beneficiaries of a will or heirs to an estate when no will exists. This blog is meant to be a cursory overview and by definition is not intended to be complete. Basically, probate is the legal process by which most property must be transferred to other people, after the former owner of the property dies. The basic process is that some interested party needs to petition the appropriate county of the California Superior Court to open probate, appoint an administrator and personal representative, issue orders pertinent to the estate and property, oversee an accounting of the property and debts, and approve the distribution of property, leading to the close of probate.

What is Probate

When a person, who is referred to as the deceased passes away and owns property, that property must be transferred to living people. Some property, like a single, non-valuable book does not require special processes to transfer. However other property, typically a house, a car and other valuable assets require that title to that property be transferred. After death, there are only a few ways to legally accomplish the transfer of that title. Probate when there is either a will or there is neither a will or a trust is one of the primary legal procedures to transfer property after death. Probate is a legal procedure that is overseen by the Probate Department of the California Superior Court. The entire process typically takes nine (9) to eighteen (18) months.

When does Probate Apply in California

A Probate is necessary when the total value of the Probate Assets exceed about $188,000, or when there is real property, like land and/or buildings, whose value exceeds about $60,000. When there are assets, but their values are lower than those amounts, the small probate or affidavit of death procedure may be able to be used.

Although out of scope of this blog, the primary alternatives to Probate are a valid written trust, with accompanying correct title of property, or transfer on death, which generally refers to when the deceased, during life, had properly identified a beneficiary or beneficiaries to financial assets like checking accounts, savings, accounts, stock brokerage accounts and the like. Transfer on death is also available for real property and automobiles.

The point for bringing up the alternatives is that sometimes those alternatives fail for one reason or another. If an alternative to probate fails, and the conditions requiring probate are met, then a Probate must still be opened. A very common reason for a trust to fail is that the assets are never retitled in the name of the trust.

What is the Probate Process?

OPEN PROBATE

PETITION to open a probate by completing and signing California Judicial Council Form DE-111 and filing that form with the appropriate court. Other necessary forms that must be filed with the court include the original will, if it exists, a Notice of Petition to Administer Estate (Form DE-121); Duties and Liabilities of Personal Representative (Form DE-147); Order for Probate (Form DE-140) and Letters (Form DE-150) after the hearing.

NOTICE HEIRS APPARARENT. A person other than the petitioner must mail the above-filed forms to all heirs apparent. An heir apparent is generally a close relative of the deceased, and includes a surviving spouse, children, parents, and siblings, or if those people are deceased, their surviving children. If none of those exist, uncles & aunts, and cousins may need to be notified. File a proof of service with the Court.

PUBLISH the notice of petition in the newspaper of general circulation in the City where the person who lived died.

HEARING FOR APPOINTMENT OF PERSONAL REP. The Court will provide a time and date for a hearing on appointment of the personal representative. At this hearing, any person can challenge the appointment or validity of the will.

ADMINISTER THE ESTATE

INVENTORY to open a probate by completing and signing California Judicial Council Form DE-111 and filing that form with the appropriate court. Other necessary forms that must

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