The death of a loved one in your life is already emotional and stressful, and then being thrust into the probate process can cause the whole situation to become overwhelming. While many people know about probate, they don’t often understand the ins and outs of the process. This is when choosing an experienced California probate lawyer, who knows the complexities of probate law, can be the right choice for you to alleviate some of that stress.

The Probate Process

Before any heirs are given their inheritance, an estate will most likely need to go through probate. Probate is the legal proceeding in which a deceased person’s assets are administered, debts are settled, and remaining assets are distributed to their beneficiaries or heirs. It includes several key steps:

Filing the Petition

At the time of death, a petition must be filed in the county where the decedent resided. This officially notifies the court that a hearing needs to be scheduled, usually in 30-40 days. If they left a will, a copy of it must be attached to the petition.

Proving the Validity of the Will

The court will decide the validity of the will. In most cases, this is a simple process, as the will is typically signed and dated by the decedent and witnesses. The court may also accept a “holographic” or handwritten will, if the handwriting is proven to be the decedent’s, or a statutory will, which is a pre-printed form that is legal in California law and signed by witnesses.

Notice to Heirs and Creditors

A third party, who must not be directly involved in the estate, will provide notice to heirs, beneficiaries, and any known creditors about the probate proceedings. This must be done by mail and include a copy of the hearing notice. It is also required that the notice of hearing must be published in the local newspaper at least three times.

First Probate Hearing

At the first probate hearing, if there is a valid will, the court will appoint an administrator as named in the will. If there is no will, no named administrator, or they are unable to serve, the court will appoint one. Some estates may require a surety bond. This is insurance that protects the estate from potential mismanagement by representatives.

Asset Collection

The estate administrator will collect any probate assets that are not beneficiary designated, property within a living trust, pay-on-death (POD) accounts, transfer-upon-death (TOD), or any of these items when the beneficiary has passed before the estate owner. The administrator will have to fill out the Inventory and Appraisal form as a declaration of the assets.

Handling Creditor Claims and the Distribution of Assets at a Second Hearing

Creditors will have around four months to submit claims against the estate to collect unpaid debts. Once this timeframe has passed, or the debts have been collected, and all expenses or taxes have been paid, the remaining assets are distributed to the beneficiaries according to the terms of the will or intestate (lack of a will) succession law.

Closing the Estate

The personal representative files a petition with the court to close the probate proceedings. The court reviews the final accounting and report and, if satisfied by proof of receipts or documentation, issues an order closing the estate. Judgment appeals can be filed within 60 days of the mailing or judgment entry.

This is a general overview of the probate process, and each unique case will have different factors affecting the process, timeline, and how complex it will be. Consulting with a probate attorney can help you better understand the aspects of your case.

FAQs

Q: How Long Does Probate Take in Orange County, California?

A: How long probate will take can vary based on each case’s unique circumstances, but it will generally take several months to over a year. It all depends on:

• The size and complexity of the estate
• Whether there are any creditor claims
• The timing of real estate sales
• Whether there are any disputes or contests
• Court scheduling
• How long it takes to distribute the assets
• How diligent the executor is

Q: How Do You File Probate in Orange County, CA?

A: To begin a probate case, you have to file a petition for probate in the California Superior Court within the decedent’s county of residence. This petition will outline information about the decedent, the executor, any potential heirs, and the estate. Once filed, the court will schedule a hearing, usually around 30 days after filing. It is recommended to consult with a probate attorney before filing to have legal guidance and ensure that everything complies with the law.

Q: How Long After Probate Is Granted Will I Get My Money in California?

A: There are a few things that may impact how long it takes to receive your inheritance after probate, including:

• A credit claims period of generally four months
• Estate administration
• How long the distribution plan is
• Resolving any contested proceedings
• Real estate sales
• Tax filings
• Whether there is a court backlog

Q: Can You Do Probate Without a Lawyer in California?

A: Yes, you can do probate without a lawyer, and it is not required for you to have one. However, it is extremely beneficial to consult with a probate attorney for legal advice, to ensure compliance with probate laws, and to streamline the process for you and your loved ones. Having an Orange County probate lawyer involved can also help address any unexpected challenges that may arise during the process.

Q: Do All Estates Have to Go Through Probate?

A: Not all estates in California are required to go through the probate process, but most of them generally do. It depends on factors such as the decedent having a valid will, a revocable living trust, joint ownership with the right of survivorship on their assets, and beneficiary designations if the decedent has a living spouse or a small enough estate.

Find the Right Lawyer to Support You Through the Probate Process

Navigating the probate process is daunting, regardless of how long or difficult it can be. At Sweeney Probate Law, we understand what you may be going through and support you through the probate process. Contact us today so we can discuss your case in more detail.