What is Probate in California?
Probate is the legal process of transferring a decedent's
estate to the rightful heirs of the estate. The probate process involves
(1) collecting and identifying the deceased person's property,
(2) paying any debts and taxes, and (3) identifying the proper
heirs and distributing the estate property to them. While the court oversees
this process, in most cases the work is done by the executor or the
administrator of the decedent's estate with the help of an attorney.
If a person is named as the executor of the estate in the
decedent's will, a court hearing to establish the validity of the will must be
held before he or she can legally act on behalf of the estate. If there is no
will and a person wants to act as the administrator of the estate, he or she
must apply to the court and be confirmed before taking any action in connection
with the estate. Anyone taking actions involving the estate before formal
appointment by the court may be personally liable for those acts.
Generally, the rules regarding probate are found in the
California Probate Code, the local rules for each superior court in the State
of California and various tax codes and regulations. Each task in the probate
process must be performed in accordance with the requirements of California law
and the various tax rules.
Property Not Subject to California Probate
In many cases, the decedent's estate consists of at least
some property that is not subject to probate. Life insurance, for example,
usually passes directly to the named beneficiary without court confirmation.
Property held in joint tenancy may also pass directly to the surviving joint
tenant. Similarly, if the deceased person had created a "living trust," assets
held in the trust are usually not subject to probate. A bank account may also
designate a death beneficiary. (These examples assume that there is no dispute
over the named beneficiary or the manner in which title is held. If there is a
dispute and a civil action is filed by an individual, the court will determine
the rightful owner of the property.)
In certain circumstances, some or all of the decedent's
property may qualify for a "summary probate" or "set-aside proceeding." These
procedures are less complicated alternatives to a formal probate.
For example, if all of the decedent's property goes to the
surviving spouse, a summary probate proceeding can be used where a "spousal
property petition" is filed with the court seeking court confirmation that the
surviving spouse owns the property. This proceeding can take as little as 30
days. In other cases, if the total value of a deceased person's property
otherwise subject to probate is less than $100,000, an affidavit procedure may
be used to transfer personal property, and the transfer of real property can be
confirmed through a relatively simple proceeding.
While these procedures avoid the court proceedings of a full
probate, this does not mean that the estate will avoid federal estate tax,
income tax, or inheritance taxes. And, even if these methods are used, the
decedent's debts must still be paid. Finally, even if a summary proceeding is
available, there may be important reasons for deciding to proceed with a formal
probate instead of electing a summary proceeding or a set-aside proceeding.
(See Benefits of Probate below.) In all cases, you
should consult with an attorney before you take any steps to transfer a
decedent's property without a court proceeding.
If There is No Will in California
In many instances, a person dies without leaving a will.
When this occurs, the decedent is said to have died "intestate" and the heirs
to the estate are determined by California's laws of intestacy. The laws of
intestate succession determine how the estate will be divided based on a
person's relationship to the decedent, e.g., surviving spouse, children, other
descendants, etc. Probate will still be required unless specific property of
the estate is not subject to probate, such as life insurance, etc., or a
summary procedure is available. If the deceased person did not leave a will and
a formal probate is required because of the nature and size of the assets, the
court will appoint an administrator to handle the probate proceeding. In most
cases, the court will appoint the decedent's closest relative to act as the
Benefits of California Probate
Despite the negative image of probate, probate proceedings
do provide some important benefits. There are some situations where, although
formal probate is not required, it may nevertheless be advisable to elect to
proceed with probate. In many cases, there are tax advantages to receiving
property through probate as opposed to being received by way of joint tenancy
or a gift made prior to death. Property obtained through probate almost always
receives a "step-up" in the tax basis to the date of death value. This often
results in a substantial capital gains tax savings on the sale of the property.
Further, if there are creditors' claims against the estate, it may be
beneficial to have probate court supervision so that the validity and amount of
the claims can be determined. Probate also bars creditor's claims if they are
not asserted during the "creditor's claims period" (generally four months after
the executor or administrator is appointed). In addition, probate provides
court supervision which ensures that the decedent's property will be accounted
for and distributed in accordance with the decedent's intent. Court supervision
can also be helpful when the family members or the beneficiaries have
difficulty getting along.
Further, the "delays" associated with probate are generally
not a significant problem. Family members usually have prompt access to joint
back accounts and insurance proceeds. And, where special needs exist, the
probate court will allow for preliminary distributions or a family allowance.
Formal probate usually only takes six months to a year to complete.
In sum, even where probate is not required, you should
consult with an attorney to consider these and other factors in deciding how
best to proceed in handling the estate.
Our firm's practice is to charge a
reasonable hourly rate for the hours that we spend on the case which, in most
cases, is less than the statutory fee.
If you are interested in hiring our
firm to handle a probate or trust matter in California.
Please call Pauline Reimer at (408)
to set up a FREE initial consultation.
Practice devoted to probate, trust administration and estate
Frequently Asked California Probate Questions |
Areas of California Probate Law
What is Probate in
California | California
Probate Attorneys | Disclaimers |