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PROBATE LAW

When is Probate Required?

A probate proceeding is a court-supervised administration of the decedent's estate regardless of whether a decedent died intestate (dying without a will) or testate (with a will).
A probate is required if the decedent has any direct ownership interest at the time of his or her death in any property (real or personal) over $150,000.  Probate law provides for a summary administration process for estates under $150,000.

The probate process begins with determining whether the decedent has a will. If there is a will, the original must be filed with the court within thirty days after learning of the decedent's death. It is important that the original will be located as quickly as possible.  The next step is gathering information about the decedent's assets, creditors, as well as the heirs and beneficiaries.

An estate can be administered with little court supervision by requesting authorization to administer the estate under the Independent Administration of Estate Act ("IAEA"). A personal representative that is granted full IAEA powers will be able to conduct most estate transactions without obtaining prior court approval, confirmation, or instructions.  Frequently, IAEA powers will allow the personal representative to sell real estate without separate court authorization while the probate is open.  These important powers should be carefully explained by your attorney.

Once the initial Petition is filed, a hearing on the Petition is set from the date of filing. The timing of this hearing varies greatly from county to county in California.  Notice of administration of the estate must be given to all interested parties by mail and a Notice of Death is published in a newspaper of general circulation.

At the hearing, if the court is satisfied that the Petition was prepared properly, notice was properly given and published, and in testate cases, the will is adequately "proved," and no contest is presented, the court will admit the will to probate and direct issuance of the Letters Testamentary.  In intestate cases, Letters of Administration are issued.

Once the Letters are issued, the executor or administrator must then discover, identify, and take possession and control of the assets of the estate. This process is frequently called "marshalling of the assets".

Within four months of the Letters being issued, or thirty days after the personal representative has knowledge of the creditors, the personal representative must also give notice to creditor to all known and reasonably ascertainable creditors. Therefore, the personal representative must make a diligent search of the decedent's personal papers to determine if there are any creditors.

Giving this notice starts the clock for the creditors to file a claim. Once a creditor is given notice, it must file a claim within four months after the Letters are issued or if notice is given after the 4 month creditor’s claim period, the creditor has sixty days to file their claim after the date the notice is sent.
If a creditor files a claim, the personal representative must either accept the debt, or reject it in whole or in part.  Common types of claims we see in California probates include the costs of burial or other final arrangements, along with any of the decedent’s outstanding creditors at the time of death.
Barring no disputes with heirs or creditors, after the four months or sixty days for creditor claims has elapsed, the estate is ready to close.

To close the estate, the personal representative must file a final account to report the various general charges, credits and transactions in the estate administration and for approval of the accounting, approval of any transactions conducted, request for fees to be paid and for final distribution.  It is vitally important that the personal representative properly maintain the financial records for the decedent’s estate, as they will be scrutinized by the court at the end of the proceedings.

Many things can happen at the final hearing.  The Court will consider any objections filed and will rule on the payment of fees, distribution, and other matters requested in the petition. The court will then issue an order settling the final account, which will provide for the distribution and payment of fees. Once the representative receives the executed order, he or she must distribute the estate assets and pay estate obligations.

Once the obligations have been paid, the assets are distributed and the receipts filed with the court, the personal representative can request an order for discharge, which will relieve him or her from all liability incurred after the date of the order.

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