- Preparing for Court
What is a Will?
A will is something in writing from the person that states the person’s wishes regarding their property after death.
What is an Estate?
All the property that a person owned at the time of their death.
Is probate necessary?
If the person who died did not have any property to transfer, probate may not be necessary. Usually the deceased person’s relatives open a probate if they feel necessary however a probate may be opened by any interested person.
Does all property go through probate when a person dies?
No, “probate estate” refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person’s “non-probate estate.”
California has “simplified procedures” for transferring property for estates under a certain amount depending on the kind of property.
Do life insurance or retirement benefits need to go through probate?
No. When a living trust holds title to some of the decedent’s property, that property also passes to the beneficiaries without needing to go through probate.
How long does the probate process take?
California law states the personal representative must complete probate within one year from the date of appointment, unless they file a federal estate tax. In this case, there is 18 months to complete probate.
If probate has not been completed by that time, the representative must file a status report with the court stating as to why the probate can not be closed and how much more time it will take.
If the representative does not report to the Court, another beneficiary can ask the Court to order the representative to file an accounting or take other actions to close the probate process. The Court can remove the representative and appoint someone else.
Where will the probate hearing be held?
Probate hearings are heard in the Probate Department of the Superior Court in the county where the decedent lived at the time of death. The Probate Department for Orange County is located in the Costa Mesa Justice Complex in Costa Mesa, California.
If you must file a probate petition in another state because there is real property in that state, the courts in that state may use a different name for probate court.
Who is in charge of the probate process?
If there is a Will, the executor is usually appointed as the personal representative. The personal representative is responsible for managing the estate and abiding by the probate rules and procedures.
The executor does not have the authority to act as the personal representative until they are appointed by the Court and the Court Clerk issues formal letters of appointment.
If no will exists or the will does not name an executor, the probate court appoints an administrator to handle the process. The Court usually chooses the closest living relative, or someone who will inherit a portion of the decedent’s assets.
Who can be the personal representative?
Any person may petition the court to be appointed as the personal representative however the petitioner is usually a relative or other person named in the will.
Who cannot be a personal representative?
The following cannot be a personal representative:
- A minor
- A person subject to a Conservatorship
- A surviving business partner of the decedent (unless otherwise is stated in the will)
- A non-resident of the U.S. (unless otherwise is stated in the will)
Is the personal representative supervised by the court?
No, however there are certain transactions the personal representative cannot make without the Court’s permission.
What does the Personal Representative do?
A Personal Representative does:
- Decide if there are any assets to probate
- Locate the decedent’s assets and manage them
- Receive payments due to the estate, including interest, dividends, and other income
- Set up an estate checking account to hold money that is owed to the decedent
- Distribution of the items; find out who the heirs are and determine each heir’s share of the estate
- Determine value of the estate’s assets
- Give legal notice to creditors of the probate proceeding and give the deadlines for the creditors to file claims
- Investigate all claims against the estate
- Pay funeral bills, outstanding debts, and claims
- Use estate funds to pay continuing expenses
- Notification of any and all accounts to be closed
- File tax returns and pay income taxes
- Distribute the property to the people or organizations named in the Will
- File all receipts and wrap up any closing details for the estate
Do I have to serve as executor if I am named in a Will?
No. You may choose not to serve as executor and decline to act then the Court will appoint another person.
If I serve as executor, will I get paid?
Yes. The executor usually earns a statutory fee which comes out of the probate estate. The Court must approve all fees and expenses.
What happens when the representative is improperly managing the estate?
The court may lower or deny compensation and may replace the current personal representative.
Do I need a lawyer for the probate process?
No, but you may want a lawyer so you are able to meet all the deadlines and avoid mistakes.
Sometimes a lawyer can help avoid disagreements among family members over any major issues.
What if someone objects to the Will?
The person may appear at the court hearing and state their objection or they may file a written objection with the Court.
What if there is no Will?
If a person dies without a will, the probate court appoints a personal representative to be appointed as administrator.
If there is no will the probate court will distribute the estate according to the state laws that determine who is entitled to estate property under the rules of inheritance.
How can I find out if there was a Will?
Check with the Probate Court in the county where the decedent lived.
If there was a will filed, see if it is available for public viewing.
What happens when the decedent owns property in more than one state?
If the decedent owned real property in another state, that state’s laws regulate how the property will be distributed.
There will be probate in each state where there is real property, in addition to the home state. Every state has its own law for distributing the decedent’s real property.
How do creditors get paid?
You must notify the creditors of the decedent’s death.
Creditors must file a claim with the court for the amounts due within a specific time frame. If the executor approves the claim, the executor will pay the bill out of the estate. If the claim is rejected, the creditor may sue for payment.
Steps when in the process to probate an estate:
- Prepare and file a petition for probate
- Notification to all heirs, beneficiaries and executors named in the will
- The court will appoint the personal representative
- Personal representative will manage the probate assets until all debts have been paid and tax returns filed, and all property distributed
- The property will be transferred to the new owners
What is a trust?
A trust is when one person (trustee) holds title to property for the benefit of another person.
What is a trustee?
A trustee is the person who holds the legal title to the property that is in the trust.
What are the responsibilities does a trustee have?
The law states the trustee must:
- Do what the trust document states as long as it is legal
- Do only things that benefit the beneficiaries
- Not favor one beneficiary over another
- Avoid conflicts of interest with the beneficiaries
- Never use trust property or the trustee’s powers for personal benefit
- Keep trust property separate from property owned by anyone else
- If the trustee must delegate some duties, the trustee must supervise the duties
- Administer and invest the assets of the trust with care and skill to protect the trust
- Diversify investments unless it would not be a good idea to do so
- Keep detailed records and give periodic reports to the beneficiaries as required by California Law
- Distribute the income as required by Probate Code Sections 16230-16375
When does a trust end?
A trust usually ends only when the trust document says it will end. Trusts usually end when the settler dies or when one of the beneficiaries dies. Sometimes a trust ends after a certain period of time or after a certain event takes place, like when a beneficiary gets married or reaches a certain age.
Listed below are some other reasons a trust can end:
- The term of the trust expires
- The trust purpose ifs fulfilled
- The trust purpose becomes illegal
- The trust purpose becomes impossible to fulfill
- The trust is revoked
If the trust ends, the trustee will continue to act as trustee until s/he finishes up the trust.
Do living trusts go through probate?
No. When a living trust holds title to some of the decedent’s property, that property also passes to the beneficiaries without going through probate.
