Overview of Probate
In California, the set of laws referred to as the “Probate Code” govern probate administration. Probate administration is the ownership change of assets owned by a decedent to the living and the payment of the decedent’s just debts. Judges enforce and administer the probate code.
A decedent’s assets are either in an “intestate estate” or a “testate estate.” A “testate estate” is created when prior to death, a decedent creates a writing that identifies persons who are to receive the assets of the decedent. Examples of writings are wills, trusts and deeds.
An “intestate estate” is created when there is no writing or document. Without a writing, persons who are to inherit are determined in the California probate code. The code has priorities for inheritance. For example, first to inherit is the spouse, then if no surviving spouse, surviving children or grandchildren inherit.
For both testate and intestate situations probate administration begins with the filing of a petition for the court to appoint a personal representative of the decedent. If the proposed appointee is nominated in the will, the petition is for the appointment of an “executor.” If the proposed appointee is not named in the will, the petition is for appointment of an “administrator with will annexed.” If there is no will, the petition is for appointment of an “administrator.”
Prior to issuing letters it is standard practice for the Courts to require the personal representative to post bond for his or her performance. A bond is not cheap and is in effect a credit application. A personal representative with a poor credit record may not be able to obtain a bond and may not be appointed. If the Will waives bond or if all beneficiaries waive bond the courts will generally honor the waiver.
If the decedent owned real property the petition should request authorization to Administer under the Independent Administration of Estates Act. This authority allows for the sale of real property in probate without a court hearing and without a court auction.
The probate court is required to have a hearing within 45 days of the date the petition is filed. Fifteen days prior to the hearing all heirs of the decedent and all beneficiaries of the Will must be provided written notice of the hearing and a copy of the petition. Notice of the court hearing must also be published in an adjudicated, local newspaper, three times over a period of 15 days prior to the hearing.
At the hearing and if no one objects, the personal representative is appointed. “Letters” are signed by the judge and provided to the personal representative. These “Letters” authorize the personal representative to gather the decedent’s assets and to pay the just debts of the decedent.
After the “Letters” are issued the personal representative has four months to identify all assets and have those assets appraised. If all creditors have been paid, at the end of four months the personal representative files a second petition.
This second petition provides; an accounting of all transactions in the estate, a proposal for distribution of assets of the estate, for authority to pay the personal representative’s fees and for authority to pay the attorney fees. Upon receipt of this petition the court sets a date for a hearing. At the hearing and if no one objects, the court approves the petition.
“Probate” is the transfer of California real property from a person who has died to that person’s heirs under the supervision and protection of the Superior Court of California. Probate begins with filing a Petition for appointment of a personal representative of the decedent. Probate ends with a second petition to distribute all assets of the estate.
If the original will is lost, it is presumed that the testator destroyed the Will with intent to revoke it. This presumption is a presumption affecting the burden of proving the Will. This is a major problem for a person named in the Will to receive a bequest who is not an intestate heir.