I have a small estate.
Does it have to be probated?
In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated. There
are exceptions made if the decedent is survived by a spouse.
small estates page for more information.
What is a probate asset?
Assets held only in the name of the decedent are generally probate
assets. An asset is not counted as a probate asset if it
is owned in joint tenancy (but not if it is
owned in tenancy in common) or if there is another means of determining
who receives the asset after death of the owner, such as beneficiary
designations for life
insurance and IRAs. If those designations have been made,
the asset avoids probate, otherwise it will be added to the estate
and probated. If there is a surviving spouse, a formal probate can
usually be avoided with a spousal property
What is an executor?
The executor, also called an administrator or personal representative, is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and
distributing the estate after a court order is obtained. The executor is nominated
in the will. If there is no will, or if all of the executors
who are nominated have died or are unwilling to serve as executor,
state law provides that the decedent's closest relatives have the highest
priority to become administrator of the estate. Depending on the
circumstances, this person may be called the executor, administrator, personal
representative, or administrator with will annexed.
How does a probate case get started?
Probate begins with the filing of a petition for probate at the Superior Court in
the county where the decedent lived. The petition is
usually prepared by the attorney for the person who wants to
become the executor or administrator. The petition for probate
provides details about the person who died, details about the
executor, and information about the heirs. The petition also
includes information about the size of the estate and whether
bond will be required.
Who decides whether the
petition will be approved?
The decision is made by the judge who hears the case,
but the preliminary work is done in most counties by a court staff member who
is called the probate examiner. The probate examiner reviews
the file, makes sure that state laws are complied with, and makes
a recommendation to the judge that the petition be approved or
denied. If the petitioner disagrees with the recommendation,
a hearing will be held to give the petitioner a chance to present
his or her case.
What are the executor's
Administration of the estate includes managing the assets to
prevent losses, paying bills for the estate, filing tax returns,
preparing an inventory of the assets, locating heirs, and dozens
of other duties. The goal is to wrap up all of the loose ends
of the decedent's financial affairs and distribute the estate
to the beneficiaries without further legal problems.
How long does an average
If the probate has no unusual problems, it can be concluded
in eight to twelve months. That includes a four-month creditor's
claims period, and the time it takes after a petition is filed
before it is actually heard. Due to crowded court calendars,
hearings are often held several weeks after the petition
is filed. There may be other problems with creditors, taxes,
or will contests that will delay the probate for longer periods.
How can someone see the
will of a person who has died?
If the estate is in probate, you can go to the Superior Court
in the county in which the decedent lived, and ask to see the
file. The file will include the will and all other documents
that have been filed in the case.
Who will receive a notice
that the probate is being started?
State law requires that notices be sent to all of the heirs of
the decedent, beneficiaries who are mentioned in the will, and
proposed executors. The notice will state the date and time of
the hearing and the courthouse where the case will be heard.
I went to one of those
hearings and I didn't hear any testimony. What was happening?
In most counties, if the case has been approved by the probate
examiner's office, and no one has indicated that they intend
to contest that decision, the hearing is minimal: The judge
calls the names of the cases on the "approved list." If no one stands up to
object when the case is called, the order will be signed without having to
hear testimony. If you want to raise an objection to any petition, be sure to
call the probate examiner's office, or the attorney for the opposing side, to
make your objection known before the hearing.
How much does probate cost? The table below
shows the fees for attorneys and executors, as provided by the
California Probate Code. More
information about probate is available on the probate