California Probate Process Explained

Probate is the handling of an estate when someone, such as a family member or other loved one, passes away. Probate ensures that any outstanding creditors are paid and that assets are properly distributed to heirs and descendants.  

The legal process begins with a “petition” (request) to open the estate and formally name a personal representative who is responsible for the administration of the deceased’s property. An Official Notice of Creditors is printed in a local newspaper and a Notice of Administration is sent to other involved parties. Creditors then have a set amount of time to file their claims based on the date of first publication. The personal representative then pays the debt and distributes the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.  

This is a very simplistic overview of a complex legal process and you should engage the services of a skilled attorney.  Upon your attorney’s recommendation, you may also be encouraged to consult with a CPA or tax consultant. 

Probate - First month

Death of Property Owner
File original wills and codicils  (executor must petition for probate within 30 days or may lose right to be executor)
Publish Notice of Petition to Administer Estate  ( 3 times before hearing date, 1st publishing must be at least 15 days prior to hearing)
Mail Notice of Petition to Administer Estate ( at  least  15  days prior to hearing)
F i l e  proof  publication  and  proof  of  mailing  "Notice  of  Petition  to Administer Estate"
File proof of will,  if required and check calendar notes at least two days before hearing
File Order for Probate and if required probate bond

Letters  issued  -  may  be  at  the  same  time,  or  after  filing  order for probate

Next 4 - 5 months

Apply for Employer Identification Number
Notify Director of Health Services
Open Estate Bank account
Arrange for preparation of income tax returns
Prepare inventory & appraisements and send to Referee
Mail Notice of Administration to creditors,  pay debts without  requiring formal claims
File approval or Rejection of formal Creditor's Claims
File Inventory and Appraisement with court
List property for sale with Realtor and start to market and sell property
File petition for Confirmation of Property Sale (if no IAEA Administrator)
Attend court hearing for overbids (if no IAEA Administrator)
File  change  in  Ownership  Statement  with county assessor for all real property
File  federal  estate  tax  return if gross  estate is valued at  $675,000 or more

Final Month - Closing Estate

File Petition for Final Distribution
Mail Notice of Hearing to heirs and beneficiaries
File proof of mailing Notice of Hearing
File Order for Final Distribution
Transfer assets and obtain receipt
File Receipts and Affidavit for Final Discharge

Intestate Succession

The following is an attempt to simplify the manner in which separate property is distributed when one dies without a will.

If  there  is  a  surviving  spouse,  but  no  surviving   children,   parents, brothers or sisters:

All to surviving spouse

If there is a surviving spouse, and one surviving child:

1/2 to surviving spouse
1/2 to child

If there is a surviving spouse and more than one surviving child:

1/3 to surviving spouse
2/3 to children

If  there  is  not  a  surviving  spouse  and  no  children,  but  there  a r e parent(s):

All to parents

If there is not a surviving spouse, no children, and no parents:

All to siblings

If  there is not a surviving  spouse the preferential order of distribution:

Children
Parents
Parent's children
Grandparents
Children of grandparents
Children of predeceased spouse
Next of kin
Parents of predeceased spouse
Children of parents of predeceased spouse
State of California

More  detailed  information  can be found in Sections  6400-6413  of the
California Probate Code

Overbids

The  Court  must confirm  the  sale.   At  the  time  of  the confirmation hearing, another  buyer  may  overbid  the  property  sale  and  the  original   purchaser. Typically overbids are offered at the hearing verbally.   At the consummation of the confirmation hearing, the successful  over-bidder will be required to execute the bid in writing and usually at this time the buyer must present a 10% deposit.

There  is  a  statutory  formula  for the first  overbid.   It is an additional amount equal  to  10%  or  more,  on  the  first  $10,000  and 5% on the amount of the original bid in excess of $10,000.

For example:

Original bid = $100,000
First overbid must be 10% of 10,000 = + 1,000
5% of $90,000 = + 4,500

Overbid must be TOTAL = $105,500

If the court receives an acceptable overbid, the court will ask for any additional overbids.   The  judge will usually establish minimum increments as to additional overbids.   All  overbids  will  be taken into account based on the gross amount (without taking into account any brokerage fees).

The above is only meant as a simplification of a very complex procedure, and only an attorney can give proper advice.

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