Losing a loved one is a sad and difficult time for the family, friends and often coworkers left behind. Shortly after the funeral, loved ones must figure out how to settle the decedent's financial and personal affairs and how to transfer the property of the person that died.
In order to settle a decedent's estate and transfer title to those who stand to inherit, you usually have to go to court. The procedure of determining that a will is valid, paying debts and claims against an estate and distributing what's left to the beneficiaries is called probate, which is a court-supervised procedure.
In California, the court proceedings for probate are as follows:
- The person who is in possession of the will MUST deliver the original will to the probate court clerk's office within 30 days.
- The holder of the will must send a copy of the will to the executor, or if the executor cannot be found, they can send it to a beneficiary named in the will.
If the custodian of the will does not to the above, he or she can be sued for any damages caused.
Note: If there is no will and a court case is necessary, the court shall appoint an administrator to manage the estate during the probate process. The person who wishes to be the administrator must file a Petition for Letters Administration (Form DE-111). Usually, the administrator is a spouse, domestic partner or close family member of the deceased.
The court process for probate is as follows:
- Someone (the petitioner) starts the case in court by filing a Petition for Probate (Form DE-111).
- The probate case must be filed in the county where the decedent lived prior to their death. If the decedent lived outside of California, in the California county where he or she owned property.
The petition for probate has different options including: Petition for Probate of Will and for Letters Testamentary, Petition for Probate of Will and for Letters of Administration with Will Annexed, Petition for Letters of Administration. However, in order to begin a probate case, the petitioner needs more than just the Petition for Probate form. It's important to talk to a lawyer to help you with the process.
Once a probate case is filed:
- A hearing date is set by the probate clerk.
- The petitioner must give notice of the hearing to all interested parties and surviving family members, even if they are not named in the will.
- The petitioner cannot mail this notice, it must be mailed by another adult who is not a party to the case.
- The petitioner arranges for notice to be published in a newspaper.
- A court probate examiner reviews the case before the hearing to ensure that it was handled correctly.
- Once all paperwork has passed inspection, a judge appoints an executor or administrator.
- The personal representative gathers the assets and files an Inventory and Appraisal (Form DE-160).
- The personal representative gives creditors formal notice with the Notice of Administration to Creditors (Form DE-157) and pays the decedent's debts.
- The personal representative prepares a final personal income tax return for the decedent.
- The probate court determines who is entitled to receive the property.
- So that sales are confirmed by the court, a Report of sale and Petition for Order Confirming Sale of Real Property is filed with the court.
- If the estate earned any money such as interest or profit from the sale, the personal representative must submit a final estate tax return.
- The personal representative provides the court with a final plan and accounting. The personal representative attends a scheduled hearing before the judge who needs to be satisfied that everything was handled properly and is taken care of.
- After filing all required receipts with the court showing that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
Probate is a complicated process that requires professional assistance from an attorney. To discuss your case with a Sacramento probate lawyer, contact The Law Offices of Jack S. Johal today for a free consultation. We can be reached at (916) 229-8027.