Horror stories in the movies are okay, but not in real life—and especially not when it comes to distributing real estate and other property when someone dies.
Thankfully, there are measures in place to prevent family contention from compounding grief. Do you know how to probate an estate in California? The probate process in California is set up to help transfer assets from a deceased person to living relatives in an orderly manner.
Probate usually involves the courts, but sometimes families can avoid probate and distribute the assets themselves. Here’s what you need to know about how to probate an estate in California—and how to maneuver through the process with the least amount of headache.
Who will oversee the process?
If the deceased has appointed someone in his or her will, that person (the executor of the will) is in charge of gathering the assets, paying the remaining debts and distributing what’s left over. If no one has been designated, the court can appoint someone.
What’s involved when figuring out how to probate an estate in California?
A petition is filed with the superior court in California, which usually results in a hearing within 30 days. Notices are published at least three times in local newspapers so that everyone will know about it. Legal heirs, potential creditors and anyone named in a will (if there was one) are also notified.
Proving the will
The next step is proving the will. Under California law, the will is proven if it contains a self-proving clause, which is where the deceased declares that this is his or her will as they want it.
For a self-proving clause to be valid, it needs to have been signed by the deceased and two witnesses. At the time of the signing, they have to have agreed that the deceased was mentally fit enough to make the will and not under any undue influence.
A will can also be proven by a written formal declaration of two people who witnessed the signing of the will and understood that it was the way that the deceased wanted it.
Gathering assets and paying debts
Once the will is proven, the executor or personal representative is in charge of gathering all the assets that are subject to probate. This includes submitting an inventory of all of the property subject to probate to the court. Sometimes appraisals are needed, too.
The executor takes care of transferring names on items like stocks and bonds, bank accounts and real estate to the names of the appropriate living people. This might include negotiating with family members to decide what to do with a house that was inherited jointly.
Meanwhile, creditors submit their claims to be paid by the estate. This includes everything from medical bills and funeral expenses to mortgage payments, and appraisal costs and bills for homeowners insurance.
Then the estate taxes are paid. Once that’s taken care of, a petition to close the probate is filed with the court.
The final steps
After everything else is taken care of, the court issues an order that releases the assets from probate. Then the personal representative distributes the rest of the property.
When can you avoid probate?
According to California law, you don’t have to go through probate if the total value of the estate is less than $100,000. This doesn’t include some assets, such as vehicles. This is called a ‘small estate’ provision.
In some cases, the deceased person will have looked ahead and made arrangements so that the estate won’t need to go into probate upon their death. This includes setting up a living trust, holding property jointly with someone else, or assets that are registered as ‘payable on death’ or ‘transfer on death’ to someone else.
If there is a surviving spouse, assets are transferred to him or her, as well, and there is no need for probate.