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Probate is the Court Supervised process of collecting the decedent's (the person who died) assets, paying those that are owed money to and distributing what is left to their heirs. Usually, if the decedent died without a valid trust, lived in California when they died, and owned real property (house or vacant land), or other assets totaling $184,000 or more, then a probate must be completed to transfer the property to their heirs or beneficiaries.
Decedent - the person who died
Personal/ Legal Representative - the person the court appoints to be responsible for the probate case
Administrator - title of the person the court appoints to be responsible for the probate case. The decedent had no will at time of death (intestate)
Executor - title of the person the court appoints to be responsible for the porbate case. Person named on will as Executor of the estate (testate)
Pro Per - title of personal/legal representative when they are petitioning for probate without legal representation.
Pro Se - title of personal/legal representative when they are still petitioning for probate. Have not been assigned an officer of the court.
Heirs/Beneficiary - relatives that by law will receive a portion of the decedent's estate
Estate - the real and personal property owned by the decedent at the time of death
Intestate - decedent died without a will
testate - decedent died with a will
Probate in California can take as quick as 6 months to years. The duration can vary depending on the complexity of the estate and if there are any disputes or other issues that arise during the process. Typically it will take 12 to 18 months to complete.
Probate costs in California can include court filing fees, appraisal fees, bond premiums, and attorney fees. Attorney fees are determined by California's statutory fee schedule, which is based on the gross value of the estate. The cost of the first filing fee for the Petition to Probate form is $465. It depends on the gross value of the estate.
While it is not required to have an attorney for probate in California, it is generally recommended due to the complexity of the process and the legal requirements involved. In this case, you would be operating as Pro Per or Pro Se without legal representation, Here is a link to the Self Help section with the Los Angeles courthouse. https://www.lacourt.org/selfhelp/willsestatestrusts/SH_WT001.aspx
Los Angeles County
Stanley Mosk Courthouse
111 North Hill Street
Los Angeles, CA 90012
San Bernardino County
San Bernardino Justice Center
247 West Third Street
San Bernardino, CA 92415
Lamoreaux Justice Center
341 The City Drive South
Orange, CA 92868
Riverside Historic Courthouse
4050 Main Street
Riverside, CA 92501
You will need a copy of the will (if any) and the original copy of the death certificate. If there is a will, it should have the name of the person as Executor (person in charge to administer the estate) and it should have instructions on how to handle assets such as real estate and the names of heirs and beneficiairies. If there is no will that is okay. We can still move forward and investigate further.
The next task is to contact the title company or a licensed Realtor familiar with probate and trusts sales. Provide the name of the decedent and the address of their primary residence. Ask for a copy of the most recent grant deed to see how title was help to the property. If the decedent owned multiple properties, it would be a good idea to locate a copy of the most recent tax returns. It should have the addresses of other properties (if any) and also the address of the primary residence. Make a note of the primary residence address.
If the property is vested in a Living Trust then probate is not needed. The Successor Trustee named in the trust will have the legal authority to sell the decedent's property.
If the property is vested in joint tenancy, and there is a joint tenant still alive, then no probate is needed. However, if all joint tenants have passed away then probate would be necessary.
If title is vested in community then title passes to the surviving spouse and probate is not needed. However, probate is required if the decedent has a will.
Since Community Property with Right to Survivorship does not recognize a will, the surviving spouse will get 100% ownership of the property upon death of first spouse. No probate is needed. However, if surviving spouse passes away at a later date then probate will be required.
if title is vested in a RTOD then probate is not needed. This was a new method of transferring real property without probate and will be a legal way to use thru January 1, 2032. The benefeciary or beneficiaries will take title and probate will not be required. However, as of January 1, 2022, an RTOD can only be used for a residence, which is defined as: 1. a property with 1 to 4 residential dwelling units; 2. a condo unit; 3. 40 acres or less that is improved with a single family residence
The surviving spouse can file a Spousal Property Petition to receive the real property without going to probate. If the house is community property or if a will was left by the deceased spouse giving the house to the surviving spouse, then probate is not needed. This would take much shorter than a probate, about 3 to 4 months to complete.
If property is originally held in a living trust but had to be removed due to a refinance and did not put title back to the living trust then probate is not required. This procedure takes approximately 4 monoths to complete.
Can take up to 2 months to complete. Usually involves raw land.
All heirs must be given notice. Can take 2 to 4 months to complete. Usually involves raw land.
A person in the following relation to the decedent is entitled to appointment as administrator in the follow order of priority:
Scenario 1: Decedent was never married and never had children. The parents of the decedent would be recognized as Administrator.
Scenario 2: Surviving spouse, children, grand children and parents are no longer alive. Then brothers and sisters of the decedent would be recognized as Administrators.
Scenario 3: Surviving spouse is no longer alive but everyone else is still alive. The children of the decedent would be recognized as Administrators.
Now that you have all the information to determine that probate is required, you will need to know what courthouse to file the petition. The law requires that the probate case must be filed in the county where the decedent resided at the time of passing. Example: If decedent owned property in San Diego but was a resident in Los Angeles at the time of his/her passing, the probate must be filed in Los Angeles county.
When navigating the probate process, it's crucial to understand the key steps involved. Once probate is determined, the next vital step is to petition the court. A probate attorney plays a pivotal role in assisting with this process, guiding you through the necessary paperwork, including the DE111 - Petition for Probate. Upon submission of the form and payment of filing fees, a court date is scheduled around 30 days later. For those with family members receiving government assistance, an Application for Fee Waiver can be filed.
In cases where a will exists, it's imperative to include a copy along with the petition submitted to the court. Given that the average probate case typically spans about one year, the appointed personal representative gains control over the estate's cash and assets during this period. Occasionally, a surety bond may be issued for the personal representative to secure the estate's assets. The attorney may seek to waive this bond, with the judge addressing the request at the first court hearing using FORM DE142 Waiver of Bond by Heir or Beneficiary.
An important reminder is that information gathered during the initial petition filing becomes public court records upon submission. This transparency may lead to solicitations through phone calls, texts, and mail. Additionally, the details of the petition filing are required to be published in a local newspaper, and a Notice of Petition to Administer Estate is mailed to all heirs, including information about the scheduled hearing. Understanding and navigating these steps with the guidance of a probate attorney is essential for a smoother probate process.
In the probate process, the first court hearing typically takes place approximately 30 days after the initial filing of the probate petition. The personal representative may not need to be physically present if they are represented by a probate attorney. This initial hearing provides an opportunity for siblings or other heirs to voice objections, particularly if they aspire to become the personal representative themselves. Such objections can result in a natural delay as the judge works to resolve the matter. If you are not appointed at the first hearing, the process will be continued, with a minimum extension of 30-45 days. On the positive side, if all goes smoothly, you will be granted the authority to administer the probate estate, effectively becoming an officer of the court. To proceed, filing Form DE147, detailing the Duties and Liabilities of the Personal Representative, is necessary, along with the payment of associated fees.
In the probate process, crucial steps follow the initial hearing, with the judge signing the Order for Probate (Form DE140) within two weeks. Simultaneously, the completion and filing of Form DE150 Letters are necessary. Once you secure certified copies of these orders and letters, you gain the authority to manage the deceased's estate assets. These documents serve as proof when dealing with banks, government agencies, and other entities involved in the estate. Depending on whether there's a will or not, the personal representative assumes the title of Administrator or Executor, receiving Letters of Administration or Letters of Testamentary accordingly. Various scenarios may lead to different types of letters, such as Letters of Administration with Will Annexed or Letters of Special Administration. The court also grants the personal representative full or limited authority, significantly impacting the probate case, especially in real estate transactions. Limited authority entails more court supervision, while full authority allows for greater independence. Specific deadlines post-receiving letters include filing the Death of Real Property Owner, sending notices to creditors, and filing an Inventory & Appraisal Form. Understanding these steps is crucial for navigating the probate process efficiently.
Achieving full authority in the property selling process is a seamless journey that begins with the acceptance of an offer at any time. Once a buyer is accepted, a pivotal step involves providing the attorney with the purchase agreement and counter to initiate the preparation and filing of the Notice of Proposed Action (Form DE165). This notice is then dispatched to all heirs and beneficiaries, offering a 15-day window for potential objections to the sale price. In the absence of objections within this period, the sale can smoothly progress to the closing of escrow. To expedite the process, heirs and beneficiaries can collectively sign a Waiver to the NOPA, eliminating the 15-day waiting period. For a successful escrow closure, essential documents include the Order for Probate, Letters, Notice of Proposed Action, a letter from the attorney confirming no estate taxes, and a copy of the Death Certificate. It's important to note that court confirmation may be necessary if any objections arise from heirs or beneficiaries during the sale process. This comprehensive approach ensures a swift and efficient property transfer.
The sale of the property involves two appraisals by the probate referee: one reflecting the value as of the date of death and another for the Sale Inventory & Appraisal within a year of the intended sale. The property must not sell for less than 90% of the reappraised value. To kickstart the process, a minimum of 10% Earnest Money Deposit (EMD) is required for an accepted offer. Advertising in the local newspaper is mandatory, with at least three publications over a span of no less than 10 days, the final one being at least a week after the first, notifying the public of the upcoming auction-style sale at the courthouse.
Buyers face the challenge of clearing contingencies, including home inspections, compliance with local laws, and various other factors. The listing and buyer's agents must possess a strong knowledge of potential contingencies to streamline the process efficiently. The filing of form DE260, the Report of Sale and Petition for Order Confirming Sale of Real Property, incurs a fee, and the court sets a hearing date, typically a minimum of 30 days out. An experienced Realtor plays a crucial role in highlighting efforts to obtain the highest and best price reasonably attainable for the property during this hearing.
At the hearing, overbidders must provide a 10% deposit in the form of a cashier's check if they wish to participate. The probate attorney, buyer's agent, and the buyer themselves should be present, especially if overbidding is anticipated. Once the sale is confirmed, whether from an overbidder or the original offer, the judge signs form DE265, the Order Confirming Sale of Real Property. A certified copy of this order is crucial for closing escrow, along with other required documents, such as letters, a letter from the attorney confirming no objections to the sale, and a copy of the death certificate. The meticulous adherence to these steps is essential for a smooth Limited Authority property sale process.
Formula for Overbids (example)
Minimum overbid = Original bid + b + c = $552,800
Filing the DE157 Notice to Creditors is a crucial step in the probate process and must be completed within four months from receiving Letters, informing creditors and government entities about the decedent's passing and settling outstanding debts. The Personal Representative (PR) works closely with the attorney to identify known creditors, such as credit card companies, medical providers, and tax authorities. Creditors seeking payment must submit a claim (DE172) to the court.
Within 90 days of receiving Letters, the personal representative/attorney is obligated by law to notify specific state agencies, including the CA Franchise Tax Board, Department of Health Care Services, Victim Compensation and Government Claims Board, Employment Development Department, and State Board of Equalization. These agencies must file a claim within four months of receiving the notice, unless additional time is granted.
Unsecured creditors have a one-year statute of limitation to collect a decedent's debt, making the estate not liable after this period. Creditor claims must be filed within four months of receiving Letters or 60 days after the creditor receives notice, whichever is later.
After the four-month credit claim period expires, the probate attorney can file the Final Petition with the court to close the probate case. The Final Accounting cannot be submitted until this four-month period has passed.
The priority of claims in probate includes debts owed to the US or the State of CA (IRS or FTB), administrative expenses, secured creditors, funeral and last illness expenses, family allowance, wage claims, and general debts. Understanding these timelines and priorities is essential for a smooth probate process.
Filing Form DE160 is crucial within the initial 4 months after Letters are issued, providing a snapshot of the deceased's assets at the time of death. A court-appointed probate referee evaluates property values, often without entering the premises. This method can lead to significant discrepancies in appraisals. To address this, make sure you work with a Licensed Realtor that is familiar with the probate process so the referee has information for a more accurate valuation and potential issues do not come up later down the road with the court.
After the 4-month period, the probate attorney can submit the Final Petition to close the case, contingent on the lapse of the credit claim period. Prioritizing claims is essential, with debts to the US or CA taking precedence, followed by administrative expenses, secured creditors, funeral and illness costs, family allowances, wage claims, and general debts. This streamlined process ensures a smooth and accurate valuation of assets during probate proceedings.
In the final phase of probate, the personal representative must file a final petition with the court, summarizing their actions and providing an itemized account of the estate's assets. The petition can only be filed once the estate administration is complete, and creditors have had a four-month period to file claims. The final accounting, detailing all financial transactions, is crucial for transparency and may determine statutory fees for both the attorney and personal representative. These fees are calculated based on the estate value and deducted from the estate's cash. Additional costs, including court fees, publication fees, and bond premiums, are also outlined.
The probate concludes with the judge's approval, the signing of the Order for Final Distribution, and the distribution of assets to beneficiaries. Each beneficiary acknowledges their share through a Receipt on Final Distribution, officially closing the probate process.
Learn the forms and at what stage of the probate timeline the forms are needed. Can be downloaded at https://www.courts.ca.gov/forms.htm
DE111 - Petition for Probate: The DE111 form is a formal request submitted to the court, seeking approval for the initiation of probate proceedings. This document serves as the official plea to legally recognize and execute the distribution of a deceased person's estate.
DE142 - Waiver of Bond By Heir or Beneficiary: The DE142 is a powerful waiver form where heirs or beneficiaries voluntarily relinquish the requirement of a bond, streamlining the probate process by eliminating the need for financial security measures.
DE147 - Duties and Liabilities of Personal Representative: The DE147 delineates the comprehensive duties and potential legal responsibilities that fall upon the personal representative tasked with managing and distributing the deceased person's estate.
DE147S - Supplement to DE147 - Confidential Statement of Birth Date and Driver’s License Number: The DE147S is an additional, confidential supplement to DE147, providing sensitive personal information, such as birth dates and driver’s license numbers, for the court's confidential records.
DE140 - Order for Probate: The DE140 is a decisive court order granting official approval for the initiation of probate. It marks the legal green light, ensuring the systematic handling of the deceased's estate and the appointment of a personal representative.
DE150 - Letters: DE150, commonly known as "Letters," represents the formal document issued by the court, granting legal authority to the personal representative for the administration of the estate.
BOE-502D - is a document used to report the transfer of real property ownership in the event of the property owner's death. This form is typically required for reassessment purposes, ensuring that property taxes are appropriately adjusted based on the change in ownership due to the passing of the property owner. It serves as a crucial tool for tax authorities to maintain accurate records and calculate property taxes in accordance with the updated ownership status following the demise of the property owner.
DE165 - Notice of Proposed Action: DE165 is a formal notice alerting interested parties about a proposed action related to the estate, ensuring transparency and providing an opportunity for objections.
DE166 - Waiver of Notice of Proposed Action: DE166 is a potent waiver where interested parties relinquish their right to formal notice regarding proposed actions, expediting the decision-making process in probate.
DE260 - Report of Sale and Petition for Order Confirming Sale of Real Property: DE260 is a compelling report and petition seeking court approval for the sale of real property within the estate, ensuring a legal and transparent process.
DE265 - Order Confirming Sale of Real Property: DE265 is a decisive court order confirming the legality and approval of the sale of real property within the probate proceedings, providing the necessary closure to the transaction.
DE160 - Inventory and Appraisal: The DE160 is a meticulous inventory, offering a detailed account of the deceased person's assets and their appraised values, crucial for the probate process.
DE161 - Inventory and Appraisal Attachment: DE161 complements DE160 by providing additional details or clarifications regarding specific items listed in the inventory and appraisal.
DE157 - Notice to Creditors: The DE157 serves as a stern notice to creditors, informing them of the probate proceedings and prompting them to present any claims against the deceased's estate within a specified timeframe.
DE172 - Creditor’s Claim: The DE172 is a formidable document allowing creditors to assert their claims against the deceased's estate, serving as a crucial step in the probate proceedings.
PRO-001 - Application and Order Appointing Probate Referee: is a legal document used in probate proceedings to request and authorize the appointment of a probate referee. This referee is tasked with appraising and evaluating the value of non-monetary assets within the deceased person's estate, ensuring a fair and accurate distribution among beneficiaries.
PRO-039 - Status Report of Administration: is a crucial document used in legal proceedings to provide a comprehensive update on the current status of the administration of an estate. It outlines key details such as the progress made in distributing assets, addressing outstanding debts, and fulfilling other responsibilities assigned to the estate administrator, ensuring transparency and accountability in the probate process.
DE295 - Ex Parte Petition for Final Discharge and Order - final step to close the estate. This will discharge you from your duties and liabilities for all acts subsequent hereto
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