Commencing Probate

PROBATE PURPOSES. The purpose of probate court proceedings is to change ownership of money and property out of the name of the deceased person to the names of the person's who are the “heirs” mentioned in the decedent’s Will. If there is not will the estate is considered “intestate” and the probate court will apply the state laws of intestate succession to determine who is entitled to the estate.

OVERALL SCOPE. Probate Code Section 7000 et seq. Probate is an ongoing process which is started by filing a form known as a petition for probate with the Superior Court in the county where the deceased person resided. If the person was an Orange County resident, the probate petition is filed with the Superior Court probate division in Santa Ana California. At the initial court hearing, a personal representative, also known as executor, is appointed by the court. That person is responsible for locating and listing the decedent's assets, paying his debts and taxes, and accounting for the money collected and paid out. The court also determines the validity of the decedent's will is there was one and the court also decides will contests and other disputes pertaining to the decedent's property. Ultimately there is a court hearing to decide on the payment and transfer of the decedent's property and to approve the accounting and money handling of the estate.

POSSIBLE SPOUSAL SET-ASIDE. Probate Code Section 13650. In the situation where some or all of a deceased person's property clearly is supposed to go to his or her surviving spouse or domestic partner there is a shortened procedure known as a “spousal set-aside” This is shorter than a formal probate, requires less forms, and takes less time. Refer to the separate article on this subject in this website. PRELIMINARY STEPS-GATHER FACTS. Before the probate petition can be filed with the court, certain minimum facts must be determined. The decedent's full name, including all aliases must be determined and his or her exact residence address and date of death must be known. These facts can often be obtained from the death certificate but typically in Orange County California it takes 2 to 6 weeks for the death certificate to be made available by the county. Also, the names and addresses of the decedent's surviving spouse, former spouses who predeceased the decedent, registered domestic partners, children grandchildren, parents, brothers and sisters and children of brothers and sisters must all be determined, complete with their current addresses. Getting all of this information correct in the beginning will avoid needless and time-consuming delays later on.

LOCATE THE WILL. It is Critical to obtain the decedent's will as soon as possible before it is lost, destroyed, or otherwise missing. Prior to the person's death, his or her will is not registered with any government agency so locating it is of critical importance. A person's will of course states where his money or property will go and if there is no will or the will cannot be found, then the state rules on intestate succession will apply. If the will cannot be found within the deceased person's home or personal effects, the person's attorney, or estate planner should be consulted to see if they have the will or a copy. Also, other relatives or beneficiaries of a will may have copies. Another caution is to determine what is the latest version of the will because usually the latest version is the one that applies. Again, however, this can be a critical situation because persons who are left out of the later will may have an incentive to destroy the later will and produce an earlier will and which they are mentioned as beneficiaries. Once a will is located, regardless of whether there is a probate proceeding, the law requires that the will be filed with the county clerk within 30 days of death unless a probate petition has been filed by then. It is extremely important that a copy of the most current and valid will be retained by the attorney and/or persons filing the initial probate petition. A copy of the will is filed with the court as part of the probate petition as well.

WHAT IF NO WILL CAN BE LOCATED? If there is no will in a probate petition can still be filed and the estate is simply classified on the petition as one where the decedent died “intestate”. “Intestate” means without a will. If they will is later located, it can always be filed with the court in an amended petition.

READING OF THE WILL. It is rare to have a formal reading of the will because there is no legal requirement for this. Will readings are more a thing of the past out of Charles Dickens novels. Instead, in California, a copy of the will is attached to the petition for probate and any member of the public can go to the courthouse and view or obtain copies of the probate petition and the will. The fact that a person's will is available for all the public to see is one of the reasons why many people prefer to use living trusts to settle their affairs. Living trusts are totally private and not filed with the court or any government unless of course there is a dispute.

FILLING OUT THE PETITION FOR PROBATE FORM & FILING. In California there is a court mandated form published by the California judicial Council entitled petition for probate which must be used to commence a probate. The form is filed with the county and the county requires a filing fee which is currently $435. Also, in orange county California, all filings in the probate court must be done electronically which involves some complications because one has to work to a service that has an authorized electronic connection with the court clerk's office. Gone are the days when you could simply walked over to the courthouse and file the papers with the court clerk. In addition to the petition for probate, there are various attachments required and other papers required to identify the person who proposes to be the executor or administrator. What's the petition for probate is filed with the court, the clerk assigns a hearing date and department which is stamped on the face of the petition for probate.

WHAT IF THERE ARE MISTAKES OR OMISSIONS IN THE PETITION? When the petition for probate is filed, the court clerk does not have the time or resources to check over the form on the spot. However, the court does have research attorneys who carefully read all petitions and then make notes called “probate notes” which are posted on the Internet which describe the deficiencies or omissions in the probate petition. Then, the petition omissions or mistakes must be corrected by additional filings with the court no later than five court days before the court hearing on the petition. Nearly all petitions have some mistakes, even minor ones, that do require additional filings with the court. If not all of the mistakes or omissions are corrected by the time they are due, the court will not appoint the executor or administrator but instead will postpone the hearing for anywhere from 4 to 12 weeks, depending upon the court scheduling load. This can be very frustrating for all of those involved so don't assume that once the probate petition has been filed that everything is okay. Again, skilled probate counsel are used to this sort of thing and know how to fix and correct mistakes to get the job done.

PUBLICATION AND SERVICE ON INTERESTED PARTIES. Once the petition has been filed and a hearing date assigned, a formal notice is required to be published in a newspaper of general circulation in the county and then the newspaper files a declaration with the court to the effect that the publication has been done and provides a copy of the publication to the court. In addition to the publication, a notice of hearing, typically on a California judicial Council form, is then mailed to all interested parties no later than 15 days before the hearing date.

WHO FILES THE PETITION FOR PROBATE? Any interested person May filed the petition for probate but there are priorities. The law states that interested persons include heirs, devisees, children, a spouse or registered directly, predators, beneficiaries, and any other person having a property right in our plate probate estate. Probate code section 48. If there is a will, the person named as executor in the will is a priority to file within 30 days of knowledge of the death of the decedent. If there is a failure to file within that 30 day period, then any other person that interested person may file.

APPOINTMENT OF EXECUTOR OR PERSONAL REPRESENTATIVE. At the court hearing on the petition for probate the court appoints an executor, if there is a will, or a personal representative if there is not a will. This appointment will not occur unless all of the papers are in order in the file and unless the petition for probate is properly and completely filled out. Filling out the form is not an easy task, especially for one not familiar with legal procedures forms and concepts so it is recommended to have an attorney assist in the preparation of the petition. After the court appoints the executor or personal representative, a court form known as “Letters” is issued by the court. Not until the letters form is issued and in hand, does the executor or personal representative have any authority. In most counties, including Orange County, it may take a week or longer after the probate petition hearing to get the letters issued. There also may be the requirement of a bond which is discussed below. Only after letters are issued can the executor access the decedent’s bank account or deal with the decedent’s property.

BONDING. There is a legal requirement for anyone appointed as the personal representative or executor to post a bond with the court. A bond is an insurance policy that obligates the insurance company to pay back the estate for up to the amount in the estate for any default theft or loss caused by the executor. Thus, the court system does not simply trust the executor to do his or her job is and care for the estate money. Bonding is always required unless the Will waives the bond or unless the heirs all waive the bond in a writing filed with the court.

OBJECTIONS OR CONTESTS CAN CAUSE LONG DELAYS. One reason for giving notification of the probate petition to all interested parties is to give everyone a chance to object. People can object to a person serving as the executor or personal representative on various grounds. People can also file will contests meaning that they want to dispute with the will says or dispute that the will is valid in case of forgeries etc. The immediate effect of any types of objections or will contests is to postpone and delay everything. In the case of an objection to the appointment of a personal representative or executor, the court then has to set the matter for a hearing and perhaps a trial to determine who should be and who should not be the executor or personal representative. That can take as long as a year to get decided and meanwhile the estate is in limbo. There are court procedures to appoint temporary personal representatives to handle specific matters but there can be long delays. Also, with a will contest, it can take as long as a year to finally get decided. Until the validity of the will is decided there can't be a distribution of the estate because it is not known who is entitled to receive the assets out of the estate.