Ÿ$Ÿ Basic Uncontested Probate Procedure in California

The topic of this article is basic uncontested probate procedure in California. The discussion will briefly describe the procedures and issues for an uncontested probate in California.

The word probate generally refers to what happens to a person's property when he or she dies. The purpose of probate is to see that the debts and taxes of the person who has died, known as the decedent are paid and that the remaining property gets to the rightful owners.

Assets held in the decedent's name alone are called probate property and usually require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate proceeding is commonly called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It generally takes a minimum of 6 to 9 months to complete a formal probate court proceeding.

Certain property does not pass through formal probate such as pay on death accounts at banks, sometimes referred to as "Totten trusts", certain accounts that name a specified beneficiary or beneficiaries with stockbrokers and other financial companies, the proceeds of life insurance policies, certain retirement accounts such as IRA's, and other types of property held in joint tenancy, or community property with the right of survivorship, etc. If the gross value of the property of the estate is less than $150,000 as determined by a probate referee, a formal probate is not required. Instead a special petition to determine succession to real and personal property is filed with the Court, this procedure is much simpler and quicker than a formal probate. There is also a very simplified procedure which can be used if the estate property is only real property with a gross value that does not exceed $20,000 as determined by a probate referee.

If there is a will then a petition for probate of will and letters testamentary must be filed. If there is no will then the petition is called a petition for probate and letters of administration.

Once the petition for probate has been filed, a notice of petition to administer estate must be published in a legal or "adjudicated" newspaper that publishes probate notices. The notice must be published before the hearing on the petition for probate. The first publication must begin at least fifteen calendar days before the hearing. All of the beneficiaries and other persons mentioned in the will must be mailed notice of the petition to administer estate at least fifteen calendar days before the hearing.

In most uncontested cases either the will waives bond, or the all of the heirs sign a waiver of bond. Most courts will waive the bond if everyone has signed a waiver, particularly if only limited authority under the Independent Administration of Estates Act is requested. Limited authority means that the executor or administrator may not sell any real property, or encumber any real property without obtaining court permission, and any sale of real property must be confirmed by the Court and a special notice published. If full authority is requested, most Courts will require a bond, as well as when the proposed executor or administrator is not a resident of California.

Note that every bonding company that the author has ever dealt with has refused to issue a bond for someone who is not represented by an attorney. Depending on the particular case, there may be ways to avoid or at least greatly reduce the need for a bond. This includes depositing money or other property such as stocks into a blocked account, with no withdrawals permitted unless a Court order is obtained. There are other ways such as the use of personal sureties but such methods are rarely used because of their complexity.

Full authority means that the executor or administrator does not have to obtain Court permission to sell any real property or encumber any real property. Instead they must serve all heirs, beneficiaries and other persons entitled to notice with a Notice of Proposed Action describing in detail what they plan to do, the notice must be served at least fifteen days before the proposed action. If anyone objects then the Court will hold a hearing on their objection.

At the hearing on the petition for probate, if no objections have been received, the Court will appoint the executor or administrator, and also appoint a probate referee to appraise certain estate property such as automobiles, real estate, and other types of property which do not have a readily ascertainable cash value such as stocks, bonds, etc. Cash in the bank is appraised by the executor or administrator.

Notice to creditors must also be given. Even if no creditors exist a notice must be served on the California Franchise Tax Board. Any creditors given notice have until the later of sixty days after the notice was served, or four months after the letters were issued to file a creditor's claim. The executor or administrator must approve the claim in whole or in part, or reject the claim. If a creditor's claim is rejected then the executor or administrator must wait three months once the notice of rejection was served before a petition for final distribution can be filed.

Once all creditor's claims have been dealt with, and after at least four months have passed since the letters have been issued, then a petition for final distribution may be filed.

The petition for final distribution will generally request that the Court approve all actions taken by the executor or administrator, and must provide a complete accounting of the estate unless all heirs or beneficiaries have waived the accounting. The petition must also list the current value of all estate property, and all heirs or beneficiaries entitled to property of the estate, as well as what percentage they will receive. Also if the executor or administrator is requesting their statutory fee, or the fee for the attorney, a detailed breakdown of how the proposed fee is calculated must be included in the petition.

If the Court approves the petition for final distribution then an Order will be signed by the Judge. Then once all heirs and beneficiaries have signed a receipt stating that they have received all property to which they were entitled, the receipts are filed with the Court along with an Ex-Parte Petition for Final Discharge which requests that the Court discharge the executor or administrator. Once that is done the probate is over, if a bond was issued than the bonding company will cancel the bond once they have received a copy of the Order of Final Discharge.

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Yours Truly,

Stan Burman

Please note that the author of this article, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this article is NOT intended to constitute legal advice.

These materials and information contained in this article have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this article is not intended to create, and receipt does not constitute, any business relationship between the author and reader. Any readers should not act upon this information without seeking professional counsel.