Navigating the Probate Process in Southern California: A Step-by-Step Guide
When a loved one passes away, there are a lot of issues to resolve. Amidst emotional turmoil, families and friends find themselves coordinating funeral and memorial services, and settling the affairs of the deceased. This includes executing a will and determining how assets––including money, property, and real estate––get distributed.
In instances where there is not a will (or the will does not specify the distribution of assets), then it goes to probate. The California probate process is complex. It also can take a great deal of time and money, depending on the circumstances.
This article details the procedures involved in California probate. Keep reading to find out what you can expect based on your circumstances.
Understanding Probate in California
Probate is the legal process of distributing the assets of a deceased person. These include bank accounts, financial investments, and real estate holdings. The proceedings are typically carried out in specific state courts (“probate courts”).
Is Probate Always Necessary in California?
Probate is not required in all circumstances. If the deceased’s spouse or domestic partner is still living, assets can be transferred directly to them (through a separate, more streamlined, process), without going to probate. This is the case regardless of whether the deceased had a will.
There are other circumstances where probate is not required. One is where the deceased was in a “joint tenancy ownership” of property, where one or more names to the title of the home. In these cases, the property automatically becomes sole ownership of the living partners.
A final circumstance where you can forgo probate is when the total of all assets is less than a certain amount (in California, that is currently $184,500). In these cases, those inheriting the assets can complete the process with sworn affidavits.
Even when probate is used, not necessarily all property is subject to it. You can have situations where some assets are handled outside of court, while others are subject to the court’s authority.
For instance, you can have a situation where a will specifies where money in bank accounts goes but fails to lay out what happens to a house. In this case, the court would only make determinations about the sale and proceeds from the home.
Also, things like life insurance and retirement benefits have designees assigned in the policy. In most circumstances, these would simply pay out to the beneficiary.
Navigating Through the California-Specific Probate Process
In California, probate is handled by the state’s Independent Administration of Estates Act. Like in other locations, probate is not always necessary in California.
If the deceased person left a will, an “executor” is responsible for carrying out the wishes described in the will. This includes allocating assets to beneficiaries. If not, then the process follows these steps.
Filing and “Proving” the Will
First, probate must be formally initiated through a “petition for probate.” You must submit a filing fee of $435 with the petition.
You must file the petition in the appropriate court based on where the deceased resided at the time of their death. After this, the court will schedule a hearing within 30 days.
If there is a will that names an executor, that person should begin the process. Otherwise, the court will name someone (usually a family member) to serve as the “administrator” of the estate (which is the same function as an executor).
The court will arrange for local newspapers to publish notice of the probate. They will also contact everyone named in the will, as well as the deceased’s legal heirs.
In some situations, there may be a dispute about the validity of the will. A “self-proving” will has an affidavit legitimizing everyone signing it. If there are questions about legitimacy, the court will decide the requirements for proving (or disproving) it.
Organization of Assets
Next, the executor will take charge of all the assets left by the deceased. The court often requires an inventory of these items.
These include bank accounts, stock, bonds, mutual funds, and brokerage accounts, as well as physical assets like motor vehicles, boats, planes, and real property. This also includes any necessary appraisals.
Note that, during this process, the administrator must protect all assets. This means maintaining (or purchasing) home insurance as a safeguard against damage or theft. The executor must continue filing tax returns on the estate until the court settles the matter.
Settling Bills
Next, the representative must settle any outstanding debt. They must pay any local, state, or federal taxes owed, as well as any new taxes, like estate taxes. If bills owed by the deceased exceed the amount of assets, the court determines the order in which the administrator pays creditors.
Distribution of Assets and Closing
Once all debts are satisfied, the executor can then begin distributing funds to beneficiaries. After this occurs, the court will issue a notice of the estate’s closing. The court also will receive an outline of all accounting actions, including payment of attorney fees (which they must approve).
The Role of a Probate Attorney in California’s Legal Landscape
In California, you are not required to hire a lawyer to handle probate. Much of the process is paperwork, and almost anyone can complete it.
Opting for simplified procedures may be cheaper and more expeditious, but there may be advantages to hiring a probate attorney as well. If there are a lot of issues that need handling, it may be worth hiring someone. A probate attorney also can help you expertly navigate complex debt or tax issues, that could end up saving you money in the long run.
In many locations, lawyers can charge their basic hourly rate or collect flat fees for their work. California is one of a handful of states that allow attorneys to collect “statutory fees” for probate representation.
This is a percentage of the estate set out by state law. These range from 0.5 to 4 percent, depending on the value of the estate. This means that attorney fees can be quite expensive, regardless of how much work is required to settle the estate.
Note that attorney fees are based on the gross value of the estate. That means that, if the deceased still owed money on their mortgage, the attorney still gets paid a percentage based on the full value of the home (not the value minus outstanding debt).
Also, note that attorneys are not mandated to follow this schedule. Although it is common, you may seek one out that charges a base or hourly fee.
In some instances, a probate attorney may not be required to sell an inherited house. In these cases, something called an affidavit of heirship will be used to transfer ownership to the heirs. To learn more about an affidavit of heirship, visit our guide on understanding an affidavit of heirship and when it can be used.
Choosing Ease and Certainty: Sell Your Inherited Property to Premier Property Buyers
Having covered the California probate process, it’s clear that dealing with an inherited property isn’t a straightforward task. The process can be long, and complex, and often necessitates the expertise of a legal professional. It could mean months, or even years, of uncertainty and paperwork. For tips on preparing your home for sale, including getting rid of odors, check out our tips for preparing your home for sale.
However, there is a stress-free alternative that exists right at your fingertips – Premier Property Buyers. As Southern California’s trusted home-buying company, we provide a streamlined approach to selling inherited properties that bypasses the hurdles of the traditional process. We don’t just buy your property for cash, but also shoulder all associated fees and closing costs.
Moreover, our team prides itself on guiding homeowners like you every step of the way, ensuring you are informed, comfortable, and satisfied with the transaction. With Premier Property Buyers, you’re not just selling a house; you’re choosing a quick, simple, and reliable solution that puts your needs at the forefront.
So why grapple with the daunting complexities of probate when you can choose a path of ease and certainty? Contact Premier Property Buyers today, and transform the stressful task of navigating the probate process into a swift and hassle-free experience.
