The Basic Probate Process – Camarillo Estate Probate Attorney
Eric Ridley, Probate Attorney Camarillo
If there’s a will, the executor named in the will should get the ball rolling.
If probate is necessary, someone must come forward to start the process.
If there’s no will, or the person named to serve as executor isn’t available, then usually a family member asks the court to be appointed as the “administrator” of the estate.
The executor’s job will probably last six months to a year.
First, the executor files the will, along with a document called “Petition for Probate,” with the probate court in the county where the deceased person lived.
Some other forms may need to be filed as well, and formal notices need to be given to beneficiaries, particularly family members, and creditors.
The will, if there is one, must be shown to be valid; usually, this is done by having the witnesses sign a sworn statement that’s submitted to the court.
When everything is in order, the court issues “Letters Testamentary” or “Letters of Administration,” appointing an executor and granting that person authority over estate assets.
Once the executor has this authority, the process of gathering the deceased person’s assets can begin.
It’s also the time for the executor to get organized, set up a filing system so that benefits and bills aren’t overlooked, apply for a taxpayer ID number for the estate, and open an estate bank account.
The executor will need to compile, and file with the court, an inventory and appraisal of all probate property.
If all this sounds overwhelming, remember that it doesn’t all have to be done at once.
And the executor can always get help, from family members or from an attorney who understands the process and can serve as a guide.
Most probate cases in California are handled under the state’s Independent Administration of Estates Act, which lets the executor take care of most matters without having to get permission from the probate court.
The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision.
During the probate process, it’s the executor’s job to keep all assets safe.
For example, a house must be insured and maintained; heirlooms must be safeguarded from theft or damage.
The executor is also responsible for filing tax returns for the deceased person and for the estate.
In California, creditors have four months to come forward with their claims.
Many estates don’t receive any formal claims from creditors; instead, the executor simply pays outstanding bills (for expenses of the final illness, for example).
If there isn’t enough money to pay all valid claims, however, state law sets out the order in which claims are to be paid from estate assets.
Finally, when all bills and taxes have been paid, the executor asks the court to close the estate.
That’s when the executor can distribute all the estate assets to the people who inherit them.
In most states, lawyers charge by the hour or collect a flat fee for probate work.
Not so in California.
statutory fee”—an amount that is a percentage of the value of the assets that go through probate.
The percentages are set out in state statutes.
In practice, this means that probate lawyers’ fees can be very high in relation to the amount of actual work done.
Probate is usually a matter of filing papers; there’s no trial and there may be no court appearances at all.
Is a Lawyer Necessary?
Unless people are fighting over the estate, probate is largely a matter of paperwork.
In California, the paperwork is mostly fill-in-the-blank forms published by the state’s Judicial Council.
Still, having forms and knowing what to do with them are different things.
Many executors find that with the right information, they can handle a California probate themselves, as long as there are no unusual complications—for example, a fight over inheritance, more debts than assets and uncertainty about who to pay, or an ongoing business.
Eric Ridley is an estate planning attorney in Camarillo, CA
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