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FAQ: How Probate Works in California

When you die in the state of California, if you leave property through a will, it must be transferred to your beneficiaries through the probate process. If you leave no will or no estate plan of any type, you still go through the probate process, but decisions regarding your property will be made by the state, rather than your wishes. California probate laws can be somewhat complex, making the process daunting to many. There are also many misperceptions regarding California probate. Many people believe that avoiding probate avoids estate taxes and that probate is only required when a person dies with no will.

There are a number of requirements placed upon beneficiaries as well as fiduciaries in California, which can make using a probate attorney almost a necessity. Attorney Mark Gullotta has been helping Californians with probate issues for more than 17 years; if you are dealing with probate, it could be time to contact the Law Office of Mark Gullotta. Below, Mark answers some of the most frequently asked questions regarding California probate: 

  • My California estate is quite small—does it require probate? In the state of California, a probate estate valued at more than $166,250[1] must go through formal court probate, although there are certain exceptions made for decedents survived by a spouse. A streamlined or non-court probate is available for estates with less than $166,250 in probate assets. For personal property under $166,250, the administration can be made through an affidavit. For California real property under $55,425[2] administration can be made by a simplified procedure with the Superior Court.
  • What is considered a probate asset? Probate assets include those assets which are held only in the name of the deceased. Joint tenancy assets, assets with beneficiary designations (life insurance policies and IRAs), or assets held in trust, are not considered probate assets. A surviving spouse can usually avoid formal probate via a spousal property petition. 
  • What is an executor (also known as an administrator or personal representative), and what does he or she do? A person who has prepared a will generally names an executor—the person responsible for managing the probate process. The executor will typically prepare an inventory of all the decedent’s assets, pay all the decedent’s outstanding bills, prepare and file a final tax return on behalf of the decedent, and distribute the estate once a court order is obtained. The goal of the executor is to wrap up all the loose ends of the decedent’s financial affairs. If there is no will, or if the named executor of a will is unwilling or unable to serve, under state law, the decedent’s closest relatives have the highest priority to be named as the executor of the will.
  • What is the probate process in the state of California? First, a petition is filed in the Superior Court of the county where the deceased person resided. The petition is either filed by the executor named in the will or by the person who wants to be the executor of the will. This petition includes details regarding the decedent, as well as details about the executor, and information about the heirs. The petition will also include information regarding the size of the estate, and whether a bond will be required for the executor. Once the executor is ready to distribute the assets to the decedent’s heirs, he or she will file a final petition for distribution; a hearing date will be set, and a judge will approve or order the final distribution. The assets will be distributed to beneficiaries, and the executor will then file a declaration for final discharge.
  • How long does the average probate in the state of California take? If there are no particular problems or issues associated with the probate, it will usually be concluded in 8-12 months. This period of time includes the four-month creditor’s claims period as well as the time it takes after the filing of a petition before a judge to hear the petition. Because the courts are so crowded, probate hearings may take several weeks to be heard after the petition is filed. The will could be contested, or there could be additional issues with taxes and creditors, which could delay the process even further.
  • Who receives notice of probate? All potential heirs or beneficiaries either mentioned in the will or those the state believes to be heirs or beneficiaries when there is no will, receives notice of probate of the estate. The executor—or proposed executor—will also receive notice of the probate.
  • Can others see the will of a person who has died? In fact, this is one potential downside of probate—it is a public process. Any interested party can go to the Superior Court in the county where the decedent lived and ask to see the court file, which contains the will and any other documents filed in the case.
  • Why do people want to avoid probate? As noted above, if privacy is an issue for you, you might want to avoid a will, perhaps deciding on a trust instead, which does not go through probate. Probate can also be an expensive, lengthy process, which can become even more complicated if a beneficiary contests the will. Probate also represents a loss of control over your estate because a judge you have never met, who doesn’t know you or your family, could be making decisions on how your assets will be distributed.
  • How can California probate be avoided? In addition to having a trust, rather than a will, you can also avoid probate by gifting or transferring property to others during your life or leaving your real property by right of survivorship. Spouses can avoid probate by holding title to real property as “community property with right of survivorship,” or California allows real property to be transferred upon a person’s death through a revocable transfer on death deed[3], thus avoiding probate. A payable-on-death account can be added to bank accounts and certificates of deposit.

 

How the Law Office of Mark Gullotta Can Help with Your California Probate

If you are dealing with the probate of a loved one—whether you are the executor, or you are a beneficiary—Attorney Mark Gullotta can answer all your questions, helping you through the process in the most expedient manner possible. In addition to probate questions, Attorney Gullotta can provide every type of estate planning you require, offering an upfront price, a comfortable planning experience, and a predictable estate process. If you are in the San Mateo County area (San Bruno, Millbrae, Burlingame, South San Francisco, Daly City, Colma, and the City of San Mateo), contact Mark Gullotta today for probate assistance as well as comprehensive estate planning. 

DISCLAIMER: The information provided in this FAQ is not legal advice. No attorney-client relationship is created as a result of this presentation. The content is intended to be a general overview of the subject matter covered and is educational and informational only.

 

[1] This amount is scheduled to change starting April 1, 2020.

[2] This amount is scheduled to change starting April 1, 2020.

[3] The law authorizing  the use of Transfer on Death Deeds is currently scheduled to sunset on December 31, 2020.