A quick review of the California Probate Process
Once you have discussed your situation with a California Probate Attorney and found out that a probate is needed in California, here is a basic review of what is involved in a probate process.
The first step is that the probate attorney will meet with the you the client to review what assets and liabilities are left behind by the deceased and collect important documents such as:
1) The original Will if available.
2) Death Certificate
3) Financial records.
The probate attorney will identify the heirs, devisees and beneficiaries. Heirs are those who rightfully have a stake in the estate if there is no Will, devisees are those named in the Will to receive assets from the estate. and beneficiaries are those specifically named on ‘Will substitutes”, documents such as a t rust life insurance policy or retirement accounts.
The next step that the probate attorney takes is to petition the court to appoint the daughter, son. wife or whomever as the personal representative (PRJ of the estate. The probate attorney will ask the court that full authority be given to administer the estate under the Independent Administration of Estate Act known as IAEA. The full authority under the IAEA will allow the estate to sell the house just like any other real estate transaction IF the Notice of Proposed Action is given to all the heirs that the house is being sold.
Unless the Will waives bond or all the heirs waive bond, then the personal representative must post a bond as an insurance policy against losses dues to the personal representative’s wrong doing. Next the Notice of Petition to Administer Estate must be filed and served to all heirs within 15 days before the first court hearing. Probate Code 8121 requires that the probate be published in a newspaper of general circulation in the city where the decedent resided at the time of death.
A very important court form that is needed before you can sell the house is called “Letters”. The certified “Letters” form allows the personal representative to sell the house, access the deceased’s bank accounts, pay the creditors or take any other actions that are required to administer the estate. However, before “letters” can be issued; there is a form called the “Statement of Duties and Liabilities” that must be filed with the court. This form lists all the personal representative’s responsibilities and because of all those duties, the personal representative gets exactly the same statutory probate fees listed in Probate Code 10800 that the probate attorney would be entitled to.
The basic purpose of a probate and the function of the personal representative are to collect the decedent’s assets, pay the debts and taxes, and distribute the decedent’s property to the heirs. Every single probate requires that an Inventory & Appraisal Form (I & A) be filed with the court. If the personal representative has full authority then the estate does not have to sell the house for the required 90% minimum of the value listed in the I & A Form. The I & A Form has to be filed with the court within four months after issuance of Letters (Probate Code 8800). The personal representative must also file a change in ownership statement with the county. The personal representative also needs to file and mail a form called “Notice of Administration of the Estate” to all known and reasonably ascertainable creditors and to the required public entities (such as the Department of Health, California Victim Compensation and the FTB). After the house has been sold, creditors are paid, and taxes have been accounted for, then the estate can be put to rest by petitioning the court to close the estate. It is important to understand that the heirs CANNOT use any of the proceeds from the sale of the house until the court approves the distribution of the proceeds.
The court will approve the distributions once the probate attorney prepares and files the Final Petition with the court that details how much the house was sold for and how much was paid to the creditors and how much is left for distribution to the heirs. When the court approves the Final Petition then that is when everybody, including the personal representative and probate attorney, and the heir’s get their money. Then the probate case can be put to rest.
We do not offer legal advise you should always consult an attorney.