Losing a loved one is always a painful time for family members. Unfortunately, the experience becomes even more difficult when confronted with the challenge of attempting to determine how to handle the decedent’s estate. Probating a will involves a number of important responsibilities and often proves to be a confusing, frustrating, and overwhelming process. If you have been named as a personal representative or executor of a will, the best course of action is to hire the services of an experienced probate attorney as soon as possible.
Learn more about Sacramento, California probate law by reading the information below, then contact Huber Fox, P.C. to discuss your situation. Our expert team will guide you through every step of the process. A skilled Sacramento probate attorney can explain the tasks you must complete, answer any questions you may have, and offer professional advice that can assist you in fulfilling your duties.
What Is Probate?
Probate refers to the court-supervised process of maintaining, preserving, and distributing an individual’s assets and property after they die. Probate cases begin with locating the decedent’s last will and testament, proving its validity, naming an executor, and determining the beneficiaries and heirs of the estate. Then, the case proceeds with calculating the value of the assets and property within the estate and transferring them to the appropriate individuals as outlined in the will. Finally, the case must settle all other remaining financial responsibilities of the estate, including settling debts and paying taxes.
What Is the Purpose of Probate?
The purpose of probate is to ensure your loved one’s estate closes appropriately according to their wishes and the legal requirements of the court. If they leave behind a will before passing away, following the probate process is necessary for proving its validity and implementing the provisions contained in the will. However, probate can also prove necessary in instances where someone dies without a legally valid will but leaves behind assets or property for distribution to other individuals or entities. When someone dies without transferable assets, probate is usually not necessary.
Which Assets Are Subject to Probate?
Under the normal circumstances present in most cases, the following assets are subject to probate:
- Individual assets, defined as assets held in the decedent’s name alone without co-owners, payable on death designations, or beneficiary designations
- Personal possessions, such as clothing, jewelry, collections, and household items
- Half of each asset owned in combination with his or her spouse
- The decedent’s portion of an asset considered tenant-in-common ownership with one or more other individuals
Certain assets do not require undergoing the probate process to transfer from the decedent’s estate, including:
- Assets held in a living trust
- Assets that pass to the surviving spouse through right of survivorship
- Assets held in joint tenancy with someone else
- Assets featuring named beneficiaries, such as life insurance benefits
- Assets registered in the decedent’s name as payable on death to specific beneficiaries
How Much Does an Estate Have to Be Worth to Go to Probate?
Depending on state laws, the total value of the assets that cannot transfer to beneficiaries and inheritors must reach a certain amount to go to probate. In California, the threshold is currently set at $166,250. Thus, probate is not required if an estate contains probate-relevant assets of a total amount less than $166,250 at the time of the decedent’s death.
What Are the Steps Involved in the Probate Process?
According to the legal guidelines of the state of California, the probate process involves seven steps. Steps include:
Step One – Appoint a Personal Representative
If the decedent left a will, they should have named an individual as a personal representative, or executor, of the estate to serve on their behalf. This representative holds a legal responsibility known as a fiduciary duty to manage the estate according to the decedent’s wishes. They must perform specific duties to ensure the proper distribution of assets and property. The court will decide if this individual is capable of fulfilling the responsibilities of this role, ensuring the safeguarding of all assets and the handling of the probate process with respect to state law. For example, executors must maintain and insure a house, as well as protect heirlooms from damage or theft.
In cases where no will exists or the person named as an executor is unable or unwilling to serve in this role, the closest relatives of the decedent retain the right to serve themselves. In other situations, relatives may nominate someone else to do so. This person is known as an administrator but retains the same rights and responsibilities as an executor. Typically, a surviving spouse or adult child serves as the administrator. If no will exists, the decedent’s assets are subject to the state’s inheritance laws, also known as intestacy laws.
To initiate the probate process, the executor must file the will and a Petition for Probate to the superior court in the county where the decedent lived at the time of death. The court will set a hearing date approximately 30 days after the petition’s filing. If everything has been prepared correctly, the court will issue Letters Testamentary or Letters of Administration at the hearing that formally appoints the executor and gives them the authority to conduct the financial business of the estate.
Step Two – Notify Beneficiaries and Creditors
After the executor files the petition with the court, they have a legal obligation to notify specific individuals of the decedent’s death. These individuals include the beneficiaries named in the will as well as the heirs capable of inheriting through intestacy law. The executor must also notify known creditors of their appointment to represent and provide information on the statute of limitations for submitting claims against the estate.
California law requires publishing a notice of the court hearing in a local newspaper a minimum of three times. The executor must mail the notice to everyone designated in the will as an heir or beneficiary, as well as anyone named as an alternate executor. The executor must complete these mailings at least 15 days before the hearing.
Step Three – Prove the Will
Distributing assets in an estate requires proving the legal validity of the will. Proving the will usually involves asking witnesses to sign sworn statements supporting its legitimacy and verifying that the decedent appeared to be of sound mind during its creation. If witnesses are not available, the executor can use several other methods to prove the will. For example, individuals familiar with the decedent’s handwriting can examine a handwritten will to confirm the will was, in fact, written by the decedent. Sometimes a will may include special wording that makes it “self-proving” and therefore does not require additional witness statements.
After the will is deemed genuine with no objections, the court admits the will to probate and formally appoints the representative or executor to manage the estate. Following the appointment, the representative must file letters testamentary or letters of administration, in which they agree to act as an executor and fulfill the duties of this role. It is here when the court grants them the authority to manage the assets of the estate. The executor will distribute copies of the chosen document to other parties during the probate process to make record of their authority.
Step Four. Compile an Asset Inventory
After appointment, the executor must create an inventory of the assets and property included in the estate that is subject to the probate process. As part of this inventory, the executor must include an accurate estimate of each asset’s value. In California, the court appoints the executor as a probate referee, meaning they can appraise all non-cash assets according to fair market value on the date of the decedent’s death.
The executor must either take possession of these assets or otherwise ensure their safeguarding, then retitle each in their name as executor of the estate. The executor must file the inventory, and all included appraisals with the court within a period of four months after their appointment to the position. Legal procedures exist for other parties to contest the value of the assets if they believe the value appraised by the referee is inaccurate.
Step Five – Pay Claims
The executor is responsible for paying all expenses and claims included in the estate, a task known as “administering the estate.” Funeral and estate expenses usually take priority, followed by debts any creditors claim against the estate. California probate law requires creditors to come forward with their claims within four months of learning about the decedent’s death. In cases where the creditor did not receive notice of the death, they can file a petition within one year of the executor’s appointment. The executor must send a notice to the creditor requesting they complete a form for approval before submission to the court.
Executors have the authority to reject claims as invalid. If an executor does so, the creditor has three months to re-file a claim with the court. However, most estates do not include contested claims. Often, creditors do not even have to send formal claims because the executor simply pays any outstanding bills involved in the estate. If the estate does not hold enough money to cover all valid claims, the executor can liquidate assets to provide payment. The law outlines which claims can be paid from estate assets.
Step Six – Pay Taxes
As the last step before estate closure, the executor must coordinate payment of all taxes due to the federal government and the state of California, along with any additional taxes based on the specific case. The process includes preparing and filing all necessary tax returns for the year of the decedent’s death, including earned income and paid deductions up to the date of death. Because income received after this date (such as interests or dividends) does not appear on personal income tax returns, the executor must file a separate tax return referred to as fiduciary tax return. This return has a specific tax identification number for the estate and results in annual tax payments until assets finish distribution, and the estate closes.
If the decedent’s estate features assets valued between $1,500,000 to $3,500,000, depending on the year of death, the executor must file an estate tax return within a period of nine months after death. Other taxes an executor may need to manage are real estate taxes, sales taxes, gift taxes, and taxes for property in other states or another country. If the IRS or California Franchise Tax Board finds a discrepancy, the executor is liable for correcting this error with the assets in probate. The best method for ensuring accurate tax filings involves consulting the attorney, tax preparer, or public accountant who coordinated the decedent’s tax affairs.
Step Seven – Close the Estate
After the statute of limitations for creditors’ claims expires and the estate has paid all claims and taxes, the final step in the probate process is to close the estate and distribute assets to beneficiaries. The executor must petition the court to make these distributions, listing all assets and the proposed plan for transferring them. At this time, the executor will petition the court to calculate the executor and attorney fees involved in the probate process.
How Long Does Probate Take?
A relatively simple estate of a moderate size that does not involve a federal estate tax may close in six to nine months. Additional tax requirements often increase the timeline to approximately twelve to fifteen months. Only in cases requiring litigation or extensive problems should the probate process take longer than eighteen months.
Receive Expert Sacramento Probate Assistance from Huber Fox, P.C.
If you have questions about the probate process in Sacramento or would like to learn more information about your responsibilities as administrator or representative, contact Huber Fox, P.C. today. Our expert team of dedicated attorneys handles all aspects of probate administration and litigation, as well as estate planning, trust administration and litigation, and elder financial protection. At Huber Fox, P.C., we can help you successfully navigate every step of the probate process and achieve the best possible results. Contact us today by submitting the form on our website to request a consultation with a member of our team.
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