California Probate Administration
Insight from an Experienced Oakland Probate Attorney
Probate is the formal court process of passing the assets of a deceased
person to his or her heirs. The probate process begins when a person files
a petition in court for authority to administer the deceased person's estate.
After the petition is filed, the person who filed the petition notifies
the heirs of the court hearing date for an appointment. The decedent's
creditors are also notified. The heirs and the creditors may then appear
in court on the hearing date to contest the appointment if they desire.
If no one contests, the appointment is usually granted. The person appointed
is then referred to as the
"personal representative" of the deceased person's estate.
The personal representative makes an inventory of the estate's assets,
determines and settles financial obligations, and deals with other matters
necessary to close the estate.
Distribution of the estate doesn't happen until the court approves
a final accounting. The distribution must be made in accordance with the
deceased person's will or according to California law if the deceased
person failed to leave a will.
to talk to an Oakland probate lawyer today!
Are All Estates Probated?
Estates larger than $150,000 have to go through probate in California.
One of the purposes in establishing a revocable living trust is to move
assets from the probate estate into the trust. Trust assets do not have
to be probated and thus can be distributed to heirs 100% according to
the deceased's wishes.
How Is the Executor Chosen?
In general, an executor is nominated in the will. If there is no will,
the personal representative is called the "administrator." It
is not always possible or practical for the nominated person to take on
the role and the court will decide at a hearing who should take on the
responsibilities. Closest relatives will be given priority, but anyone
can be named the administrator of the estate. When there is a complex,
or large estate,
the lawyer for the executor or administrator will handle many of the duties. This helps avoid mistakes and prevent challenges of impropriety by other
Some of the duties of an executor or administrator include:
- Determining the assets of the estate and providing an inventory to the court.
- Asset management - to maintain value until distributed to beneficiaries
- Paying creditors - verifying claims, closing out accounts and settling bills.
- Locating heirs and notifying them of their status.
- Anticipating and filing tax forms.
- Filing a final accounting with the court so that assets can be distributed to heirs.
- Each of these responsibilities can have multiple steps and complications.
How Long Does Probate Take?
In California, there are four months allowed for creditors to file claims
with the court. After this, probate can take an additional four to eight
months (or more). There are many reasons for delays, including court scheduling
and how busy they are, problems that arise in any of the executor's
or administrator's duties and (occasionally) objections raised by
family members, creditors, and others. For these reasons, the involvement
of an attorney is important. Your attorney will know how to respond to
any difficulties, such as motions that have to be filed, and how best
to move the process forward expediently.
If you have additional questions about how the probate process works and
would like to discuss them, please contact me. I am an Alameda County probate lawyer with over 20 years of experience!