When someone dies, their estate will typically go through the probate process. That is the manner in which the money and property which makes up their estate will be distributed to their heirs. In order to probate a will, the process will generally involve several steps, including proving the existence of the will, identifying and inventorying the property, appraising the property, paying debts and taxes, and finally distributing the assets that remain.
Probate a Will
Here is what you need to know to probate a will in California.
An executor must be appointed
Before the probate proceedings are officially initiated, the court is required to appoint someone to oversee those proceedings. When there is a will, that document will usually designate a personal representative or executor to take on this responsibility. If that is not the case, the court will appoint someone to serve in that role. The executor is required to remain impartial in his or her representation of each party who has a legal interest in the estate. The person appointed as executor will take possession of the estate property and distribute that property accordingly.
The first step to probate a will is filing the petition
The first step in initiating probate proceedings is to file a petition with the California Superior Court. The appropriate court will be in the county where the deceased resided at the time of her death. This petition will trigger the court to schedule a hearing in approximately thirty (30) days.
Necessary notices of the probate proceedings
When it is time to probate a will and a petition has been filed with the court, a notice of hearing must be published in the local newspaper at least three times. It is also necessary to mail the notice to everyone named in the will along with all legal heirs of the deceased. Notice is also required for all potential creditors.
To probate a will you may need to prove the will
When there is a will it is often necessary to “prove” the will unless it is a qualified “self-proving” will. If the will is self-proving, it will contain specific language or an affidavit from everyone signing the will. Those added provisions will make it unnecessary to prove the validity of the will during the probate proceedings. Every state has its own rules regarding whether or not self-proving wills are valid and, if so, how they must be created.
The assets of the estate must be collected
One of the main duties of the executor is to take possession of all of the deceased’s property, but only those assets that are subject to probate under the law. There are certain types of property that are not required to go through probate. Some types of assets that may require a title change, such as stocks and bonds, mutual funds, brokerage accounts, bank and credit union accounts, physical assets such as real property, motor vehicles, boats, and planes. The court often requires an inventory of the estate property and an appraisal to determine the value.
Payments must be made to creditors to probate a will
Once the executor has provided notice of the death to creditors, those with debts payable by the estate must submit a claim. If those claims are determined to be valid, they will be paid from the estate. All valid debts must be paid before other distributions can be made. This includes all bills, as well as funeral expenses. California requires creditors to submit their claims within four months of the appointment of the executor.
Estate tax payments must be made before distributions
The executor is also responsible for making sure all estate taxes are paid, that includes federal estate taxes and state taxes, which the state of California imposes. In most cases, an executor is not held personally liable for estate taxes, but if the estate has been distributed before the taxes are paid and there are insufficient assets remaining to pay those taxes, personal liability may be imposed.
Concluding the estate
The final step when you probate a will is closing the estate. This final step involves providing an accounting of all actions taken by the personal representative with regard to the estate. A petition, which summarizes the estate and reports all actions taken on behalf of the state, will be filed with the court. The petition also includes the fees to be paid to the personal representative and the estate attorney, if applicable. If there are no objections and the court approves the accounting, then an order will be entered by the court concluding the estate. Once this happens, the personal representative can then distribute the remaining assets to heirs and pay any necessary fees.
Join us for a FREE seminar today! If you have questions regarding how to probate a will or any other estate planning needs, please contact the Schomer Law Group for a consultation either online or by calling us at (310) 337-7696.
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