The probate process – Part One

Most of us have an idea of ​​what we would like to see happen to our belongings when we die. We would like our favorite niece to receive a special piece of jewelry or our house (often our most precious possession) to pass into the hands of our children. But many of us have no idea how this happens. This article will explain exactly what happens when we die and what happens to our things (the legal term for our things or belongings is our ‘estate’).

PLAN

If we have a plan to distribute our belongings, that usually means we have a will or a trust. A will is a legal document that lets everyone know who will be the executor of their estate; who should receive your property; and how you want your estate managed. A will in California must be witnessed by at least two adults and signed by the person creating the will. It doesn’t have to be long. It does not have to be notarized. Your family members should be able to easily access the original copy of your will after your death. The probate process is the legal procedure to carry out the wishes you have stated in your will. Without it, the court will implement its backup plan. A duly valid trust is not required to go through the probate process unless challenged. Also, more informal plans, such as ‘pay-on-death’ accounts, do not have to go through probate.

The petition

Filing the will with the court is the first step in the probate process. This is done with a petition asking the court to recognize the will as your last will and testament. The petition also asks the court to authorize the person you named in the will as your executor to carry out your final wishes. Generally, the person you have appointed as executor will take over the task of preparing the petition or hire an attorney or legal document preparer to do so. The person seeking authority from the court is called the petitioner.

The petitioner must identify all members of your immediate family, your spouse who predeceased you, and each person you have named in your will. The petition must also state your assets, an estimated value of your property, the type of authority the prospective executor should be given (limited or independent control), and whether a bond is required. The petition is a court-required form and, once completed, must be filed with the court along with a copy of the will. The original copy of your will must be filed with the court and is kept on file with the court.

Once the petition is completed and a copy of the will is attached, it is filed with the court with the required filing fee. Currently, the filing fee in California is $435 for a probate petition. Once the fee is paid, the court clerk will assign a hearing date so that the judge can decide on the petition. The short calendar varies from county to county. Some counties assign hearing dates within 15 or 20 days, while other courts are so far back that the petitioner may not get a hearing date for two months. Prior to the hearing date, court staff will review the petition and present it to the judge with any questions or comments.

hearing

Before the judge issues a decision on the petition, a summary of the petition must be published in your local newspaper. In fact, the petition must indicate the specific name of the newspaper in which the publication will be published. This publication is required to let potentially interested parties know that someone is seeking court permission to probate their estate. This public notice gives anyone the opportunity to come forward and object to the appointment of the executor or challenge the will itself. Family members and next of kin should receive a separate notice mailed directly to them. Just as the newspaper ad gives the public an opportunity to object, mailed notices give family members the same opportunity.

Assuming there are no objections and all procedural steps (such as notices) have been followed, the judge will grant the probate petition at hearing and your executor will be officially appointed to manage your estate. It is at this time that an executor’s bond must be filed with the court, if required. After the hearing, your executor will receive signed copies of the probate order and letters of appointment. Like the petition, the petitioner is also responsible for preparing these documents for the judge’s signature. Your executor will need these two documents as proof that he or she is authorized by the court to pay your debts, collect all money owed to you at the time of your death, access all your bank or brokerage accounts, and take care of your property. . Almost all third parties, such as bank representatives, mortgage companies, title companies, and government officials, will require a copy of the order and letters before disclosing any information about their affairs. Your executor will likely need a certified copy of these documents. Certified copies are available from the court clerk for an additional fee.

Once appointed, your executor will not only be in control of your estate, but will also be responsible to the court and the beneficiaries for how your estate is managed. In fact, every action taken during the administration of your estate must ultimately be reported to the court. And some actions, like the sale of your home, require giving the beneficiaries and/or the court advance notice of the sale. But most importantly, your executor is responsible for carrying out her final wishes. The best she can do to facilitate that is to make sure her will was properly executed, make sure her loved ones know where the original will is, and finally make sure her wishes are clearly stated. Following these steps will make the process of fulfilling your last wishes easier.