Written by attorney Michael Robert Weinstein

A Brief Description of the Probate Process In California

When a resident of the State of California dies, the California Probate Court has the duty to oversee the orderly transfer of the deceased person's assets (referred to as an Estate) to the proper recipients. The property administered by the Court does not include property held in a trust, property that has a named beneficiary (such as a life insurance policy, retirement accounts such as IRAs and 401 Ks, or other financial accounts on which the owner has named a beneficiary), and property passing pursuant to state law (such as real property in which title is held with another person with "right of survivorship"). California's Courts do not have jurisdiction over real property located in another State or Country, and such property typically will require a local probate proceeding in the State or Country where the property is located. If a person has prepared a will prior to his death it will specify the person who will administer the deceased person's estate and that person is called an Executor. If no will has been prepared, a family member or creditor may file a petition with the court to be named as the Administrator of the Estate. California statutes specify the order of priority that petitioners have to be named as Administrator: spouse; children; parents; siblings; etc. If no one files a petition to administer the Estate, the Public Administrator will be appointed to administer the Estate. At the same time the Petition to be named Executor or Administrator ofthe Estate is filed with the court, a notice must be placed in an approved newspaper to alert creditors and family members of the death. Creditors must also be given notice so that they can submit claims on the Estate. California statutes provide that an Executor or Administrator or close family member shall be given access to safe deposit boxes in the name of the decedent for the purpose of preparing an inventory and determining if there is a Will or Trust, but that they may not remove anything from the box. It is permissible to make copies of any Will or Trust discovered in the box. A bank employee should be present at all times the box is inventoried. An Executor or Administrator of an Estate has the duty to determine what assets are contained in the Estate, take control of these assets, and submit an inventory to a court appraiser called a Probate Referee. The inventory is filed with the Court for final approval. The Court must approve certain actions taken by the Executor or Administrator, however, certain debts can be paid from the Estate without Court approval such as funeral expenses and expenses of the final illness. Additionally, the costs of safeguarding the assets of the estate may be paid without seeking court approval. Other tasks that may be necessary for an Executor or Administrator are: engaging in litigation regarding collecting property or enforcing claims of the estate; contesting suits brought by creditors; and litigating claims by heirs or beneficiaries. After the Executor or Administrator has gathered the assets of the estate, paid allowable bills/costs, and prepared the inventory, he must file an accounting with the Court for approval. The accounting allows the court to review and approve payments to creditors, and the fees of the Executor/Administrator and attorney among other items. Last the Court is asked to order the distribution of the remaining Estate according to the terms of the Will or according to state law for deceased individuals who die without a Will (known as intestate succession). If there are no living beneficiaries or heirs designated in the Will or under state law, the property passes to the State of California ("Escheats"). After distribution of the Estate, receipts for payments are filed with the court, and the Executor or Administrator is discharged of his duties. The time to complete the process is usually no shorter than seven months because of the tasks that must be performed and the wait to get before the court to receive its approval at each step of a probate. Ifthere are disputes among heirs/beneficiaries or with creditors, the process will take longer. _______________________________________________________________________ Nothing contained in the information on this web site is to be considered as the rendering of legal advice for specific cases and readers are responsible for obtaining such advice from their own legal counsel. This web site is intended for educational purposes only. Michael R. Weinstein, is licensed to practice only before the courts of the State of California, and is admitted to practice before the United States District Court for the Central District and the United States Court of Appeal for the Ninth Circuit. No information contained herein is to be considered applicable to legal matters in domestic or foreign jurisdictions outside of the State of California.

Free Q&A with lawyers in your area

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer