Probate 101: Demystifying the Process of Estate Administration
Probate is the court-supervised process for administering a decedent’s probate estate, which may include determining the validity of a will, appointing a personal representative, addressing debts and taxes, and ultimately distributing the remaining probate assets to the persons entitled to receive them. If there is a will, the court generally appoints the person nominated as executor if that person is qualified and willing to serve.
If there is no will, the court distributes assets using intestacy rules. In such a case, the decedent’s probate assets are distributed according to California’s intestate succession laws. The court generally appoints an administrator rather than an executor. Who inherits depends on the decedent’s surviving family members and the character of the property. A surviving spouse or registered domestic partner may inherit some or all of the estate, while children or other relatives may also inherit depending on the circumstances.
Does Every Estate Have to Go Through Probate?
Not every estate has to go through the probate process. Assets held in a living trust, accounts with named beneficiaries, and property owned jointly generally pass outside probate.
California also offers simplified procedures for smaller estates. According to Probate Code Section 890:
- If the gross value of the decedent’s qualifying property in California does not exceed $208,850, a successor may be able to collect certain personal property using a small-estate affidavit after at least 40 days have passed since the death.
- A separate court procedure may be available to transfer a decedent’s primary residence with a gross value of $750,000 or less, subject to the statutory requirements.
- California also has a separate procedure for real property of small value, currently subject to a $69,625 limit for deaths on or after April 1, 2025.
These amounts are adjusted every three years, with the next adjustment scheduled for April 1, 2028.
How Does the Probate Process Work?
Most probate cases follow these steps:
- File a petition. The personal representative petitions the court to open the estate and be appointed.
- Give notice. Heirs and beneficiaries are notified, and a notice is published in a local newspaper.
- Receive Letters. After the hearing, the court issues Letters Testamentary or Letters of Administration, which give legal authority to act for the estate.
- Inventory the assets. The personal representative identifies and secures estate assets and prepares an inventory and appraisal. Many non-cash assets are appraised by a court-appointed probate referee.
- Notify creditors and pay debts. Creditors generally have four months from the date Letters are issued to file claims. Valid debts, final taxes, and expenses are paid from estate assets.
- Distribute what remains. Once claims are resolved, the court approves distribution to beneficiaries and the estate is closed.
How Long Does Probate Take?
The length of time to complete the probate process can vary widely. Generally speaking, with a straightforward will and simple estate, the process can last anywhere from 9 months to a year. Contested wills, complex assets, tax issues, or disputes among heirs can extend this timeline considerably, however.
Can I Avoid Probate?
Often, yes. A revocable living trust, beneficiary designations, and transfer-on-death arrangements can reduce or eliminate the need for probate. The administration of a living trust is often quicker, less stressful, and more cost effective than going through probate. Planning ahead is typically the most effective way to save your family time, money, and stress.
Why Work With an Estate Planning Attorney?
Probate involves strict deadlines, detailed court filings, and personal liability for the representative if mistakes are made. An experienced attorney can guide you through each step, answer questions as they arise, and help you avoid costly delays.
At Lonich Patton Ehrlich Policastri (LPEP Law), our Estate Planning Group has years of experience handling probate issues. Whether you are facing a probate situation or want to discuss how to avoid it, schedule a free, no-obligation consultation. We can provide the legal expertise and advice you need to protect your family.
Disclaimer: This article does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter.
FAQs
Q: Do I need probate if there is a will?
A: Yes, in many cases. A will doesn’t avoid probate; it tells the court how to distribute your assets.
Q: How soon after someone dies do I have to start probate?
A: California has no fixed deadline to open a probate case, but anyone holding the original will must deliver it to the court within 30 days of the death. Starting promptly helps protect assets, avoid late-discovered creditor issues, and keep the process moving.
Q: Who can serve as executor of an estate?
A: Usually the person named in the will, as long as the court finds them qualified. If there is no will, the court appoints an administrator, with priority generally given to the surviving spouse or domestic partner, then adult children and other close relatives.
Q: Are probate records public?
A: Yes. Probate filings are generally part of the public court record, so wills, inventories, and distribution details can be viewed by others. Many families use living trusts to keep their affairs private.
Virginia Lively
Virginia Lively joined Lonich Patton Ehrlich Policastri in 2016, and has practiced family law exclusively since 2012. In 2018, Ms. Lively became a Family Law Specialist as certified by The State Bar of California Board of Legal Specialization. Her work with clients throughout the Bay Area has demonstrated her expertise in divorce, domestic violence, and spousal and child support as well as tax planning and litigation.
