Probate refers to the process where the last will and testament of a deceased person is executed. It involves settling the taxes, debts and liabilities of the person, determining the value of the estate and assets left over and distributing these assets to the rightful beneficiaries.
While circumstances could differ from case to case there are four main phases in every probate process.
The process begins after the death of a person and sometimes supervised by the courts. The process completes once all the liabilities are settled and assets distributed to the rightful owners. Sometimes, the process in Orange County, as well as throughout California, can take years and possibly even decades to complete, depending on the circumstances.
1. Filing a Petition in the Court
The process begins when the surviving members of the deceased or their representatives file a petition in a probate court to do one of the following.
Admit the will to probate and appoint an executor.
If there is no will, appoint an administrator of the estate.
The notice of the hearing must be provided to all the heirs and beneficiaries of the estate. If one of the beneficiaries wants to object to the hearing, they have the opportunity to present their argument in court.
2. Notice to Creditors and Court Hearings
The court will schedule a hearing to give all the stakeholders a chance to present their arguments. It is the petitioner’s responsibility to inform all the beneficiaries and creditors about the hearing and publish a legal notice in a local newspaper to alert them.
In cases where there is a will, the hearing is just a formality and the petitioner may not even need to show up. If the request is approved, the court will authorize an administrator to act on behalf of the estate. A letter of administration or letter of authority will be issued to make it official.
The court may require the petitioner to post a bond which serves as an insurance policy that the estate will be protected from any losses caused by the administrator.
The authenticity of the will may be challenged at this stage and the petitioner will need to prove that it is valid. A notarized statement signed by witnesses or court testimony from witnesses may be required to prove this.
3. Taxes, Debts, and Funeral Expenses to Be Paid From the Estate
The estate administrator must clear all taxes owed by the decedent and pay for the funeral costs. The administrator must also determine which creditor claims are legitimate and pay the amounts owed to different parties. In some cases, the administrator is allowed to sell off the assets to clear the bills owed by the decedent.
The administrator is allowed to open a bank account in the name of the estate and use it to gather funds collected from the sale of estate assets. This account can be used to pay creditors and other expenses. It is not uncommon for probate cases to be open for several months before court decision and the administrator is allowed to settle creditor accounts for the duration of the probate process. The administrator must provide the court with a list of the deceased person’s property and proceeds from sale of assets.
4. Transfer of Legal Title to Beneficiary
The final stage in probate cases is the settlement of the court case. This happens after reasonable time has been given to creditors to file claims and other expenses have been paid. The administrator must notify the court that the remaining assets are being transferred to the descendants in accordance with the will and court decision.
The administrator must also provide a detailed record of how the assets were managed during the probate period unless the beneficiaries waive this requirement.
Finding a Probate Lawyer
If you are just starting the probate process and are in search of legal assistance, contact one of our probate attorneys in Orange County to discuss your matter. Our listed attorneys are all verified to have their primary office local to Orange County.