Probate is a court supervised administration of a person's estate when they die. A probate may be opened when a person died with or without a will and their estate is valued at more than $184,500.00. It may also be required if a person had a trust, but failed to properly fund the trust and left assets outside of the trust, or failed to update their beneficiary.
Probate Process
The probate process is oftentimes time consuming, and can be expensive. Additionally, the procedures may vary depending on if the decedent died with or without a will. Probate is only required if the decedent's estate exceeds a certain amount. If the estate does not meet the threshold, there are simplified procedures, which can save time and money. See below for some general information on when probate is required and the stages.
When is Probate Required?
Probate is required for property that the decedent owned directly. If the decedent's estate exceeds $184,500.00 it will be required to go through probate in the county where the decedent resided at their death.
Please note that this area of law can be complex. Probate may be avoided if property was held in joint tenancy, community property with right of survivorship, or in a trust, or financial accounts that that designated a beneficiary. Additionally, if a decedent is survived by a spouse or domestic partner, probate may be avoided by a spousal set-aside petition.
Stages of Probate
The probate process begins with the filing of a petition. The petition will be for the probate of a will, or if the decedent died without a will, a petition for letters of administration.
Decedent Died With a Will
If a decedent dies with a will, it is called testate. A petition and the original will will be filed with the court, and a hearing date will be set. Wills typically nominate an executor, and a backup if the first choice cannot act. The executor will be responsible for paying the debts of the estate, and distributing the assets of the decedent to the beneficiaries in the will.
There are many stages that occur during the probate process, typically it begins with a petition being filed, notification of beneficiaries and heirs, publishing notice of probate administration, notifying creditors, inventory and appraisal of the estate assets, payment of debts, and then finally a petition for final distribution.
Please note that if there is a will contest, this may delay the process and require additional court hearings.
Decedent Died Without a Will
If a decedent dies without a will, it is called intestate. Anybody may file the petition with the court to be appointed as the estate's personal representative. This personal representative will be responsible for paying the debts of the estate, and distributing assets of the decedent to the heirs at law.
When a decedent dies intestate, their assets will pass through the intestacy laws of California. The state has an established scheme for how an estate is passed, and it will depend on if the decedent was married.
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Decedent Married: If a decedent was married, their estate will pass as follows:
- Generally, community property or quasi-community property will pass to the surviving spouse;
- Separate property of the decedent will pass to the surviving spouse if the decedent was not survived by issue, parents, siblings, or the issue of siblings. If the decedent was survived by one child, or issue of a deceased child or parents, or the issue of parents, the surviving spouse will receive one-half the the decedents separate property. If the decedent was survived by more than one child, or one child and issue of a deceased child then the surviving spouse will receive one-third of the decedent's separate property.
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Decedent Unmarried: If the decedent was not married at the time of death the estate will pass as follows:
- Issue of decedent;
- If no issue to parent or parents of decedent;
- If no issue or parent(s), to the issue of parents;
- If no issue, parent(s), or issue of parents, to grandparents or the issue of grandparents;
- If no issue, parent(s), issue of parents, grandparents or issue of grandparents, then to issue of predeceased spouse;
- If there is no surviving issue, parent or issue of a parent, grandparent or issue of a grandparent, or issue of a predeceased spouse, then to next of kin;
Consult a California Probate Attorney
Determining whether a probate is required can be difficult. The Law Office of Jessica R. Ward can assist you with your questions and concerns moving forward. Attorney Jessica Ward understands what a difficult time this may be, and her goal is make the process less overwhelming. Contact us either by using our online form or calling directly at (925) 459-1777 to schedule a complimentary 30 Minute Consultation.