The Probate Process – Part One

Most of us have an idea of what we would like to happen to our belongings when we die. We’d like our favorite niece to receive a special piece of jewelry or see our home (usually our most valuable asset) pass on to our children. But many of us don’t have any idea how this happens. This article will explain just what happens when we die and what happens to our stuff (the legal term for our stuff or belongings is our ‘estate’).

A PLAN

If we have a plan for distributing our belongings that usually means that we either have a Will or a trust. A Will is a legal document that lets everyone know who will be the executor of your estate; who should receive your property; and how you want your estate managed. A Will in California must be witnessed by at least two adults and signed by the person creating the Will. It doesn’t have to be long. It doesn’t have to be notarized. The original copy of your Will should be easily accessible by your family members after your death. The probate process is the legal procedure for carrying out the wishes you’ve stated in your Will. Without it, the court will implement its back-up plan. A properly valid trust is not required to go through the probate process unless it is challenged. Also, more informal plans such as ‘pay on death’ accounts do not have to go through probate.

The Petition

Presenting the Will to the court is the first step in the probate process. This is done with a petition which asks the court to recognize the Will as your final wishes. The petition also asks the court to authorize the person you named in the Will as your executor, to carry out your final wishes. Usually the person you have named as the executor will take on the task of preparing the petition or hire an attorney or legal document preparer to do it. The person asking for the court’s authority is called the petitioner.

The petitioner must identify all your immediate family members, your spouse who died before you and every person you’ve named in your Will. The petition must also state your assets, an estimated value of your property’s worth, the type of authority the would-be executor should be granted (limited vs. independent control) and whether a bond is required. The petition is a court required form and when completed, it must be submitted to the court along with a copy of the Will. The original copy of your Will must be lodged with the court which is kept in the court’s files.

Once the petition is completed and a copy of the Will attached, it is presented to the court with the required filing fee. Currently, the filing fee in California is $435 for a petition for probate. Once the fee is paid, the court clerk will assign a hearing date so the judge can decide on the petition. The court calendar varies from county to county. Some counties assign court dates within 15 or 20 days while other courts are so backlogged the petitioner may not get a hearing date for two months. Prior to the hearing date, the court staff will review the petition and present it to the judge with any questions or comments.

The Hearing

Before the judge will issue a decision on the petition, a summary of the petition must be published in your local newspaper. In fact, the petition must state the specific name of the newspaper the publication will be posted in. This publication is required to let potentially interested parties know that someone is seeking the court’s permission to probate your estate. This public notice then gives anyone the opportunity to come forward and object to the appointment of the executor or contest the Will itself. Family members and next of kin must receive a separate notice which must be mailed to them directly. Just as the newspaper notice gives the public a chance to make objections, the mailed notices offer family members the same opportunity.

Assuming no objections are made and all the procedural steps have been followed (such as the notices), the judge will grant the petition for probate at the hearing and your executor officially appointed to manage your estate. It is at this time that an executor’s bond must be filed with the court, if required. After the hearing, your executor will receive signed copies of the order for probate and letters of appointment. Like the petition, the petitioner is also responsible for preparing these documents for the judge’s signature. Your executor will need these two documents as proof that he or she is authorized by the court to pay the your debts, collect all monies owed to you at the time of your death, access all of your bank accounts or brokerage accounts and take care of your property. Nearly all third parties such as bank representatives, mortgage companies, title companies, and government officials will require a copy of the order and letters before releasing any information about your affairs. Your executor will probably need a certified copy of these documents. Certified copies are available from the court clerk for an additional fee.

Once appointed, your executor will not only be in control of your estate, he or she will also be accountable to the court and the beneficiaries for how your estate is managed. In fact, every action taken during the administration of your estate must ultimately be reported to the court. And some actions, such as selling your home, require giving the beneficiaries and/or the court advance notice of the sale. But most importantly, your executor is responsible for carrying out your final wishes. The best thing you can do to facilitate that is make sure your Will has been properly executed, make sure your loved ones know where the original Will is located and finally make sure your wishes are clearly spelled out. Taking these steps will ease the process of fulfilling your final wishes.

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