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California Probate Process Explained* back

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

The legal process begins with a “petition” (request) to open the estate and legally 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 simplistic overview of a complex legal process and you should engage the services of a skilled attorney.  Your attorney may recommend that you also 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)
  • File 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 and 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

*Source: California's Probate Code

Intestate Succession* top

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  are 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

*Source: California's Probate Code

Overbids* top

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.

*Source: California's Probate Code

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* (California and Nevada)

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

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Intestate Succession