Demystifying California Probate Court
As a California licensed attorney and a legal specialist in estate planning trust and probate law, I am dedicated to helping my clients with planning their legacies. I help them make important decisions about their estate plan and I prepare legal documents for them to sign. In my role as a trust and estate attorney, I do appear in Probate court from time to time. For this article, I wanted to demystify California probate court to make it easier for readers to understand what the court process looks like and how to avoid it. The main reason people want to avoid probate court is that they do not want to incur court costs and attorney fees which add up very quickly.
Sometimes an estate is subject to the probate court even before somebody dies. A conservatorship case is filed in the local probate court if during a person’s lifetime they become incapacitated or they can no longer manage their assets on their own. A conservatorship case is necessary because the incapacitated individual failed to sign a Power of Attorney and/or Advance Healthcare Directive. Since they failed to nominate someone to act on their behalf for financial and/or health decisions, then the court must appoint a conservator of the estate and a conservator of the person. This is a costly process, and the conservatorship case is open until the person dies.
Probate is not bad; it is just the legal process of distributing an estate after the death of a decedent if they died owning real estate or assets valued at over $184,500 and failed to sign a trust. The process is overseen by a court called the probate court. In probate court, a judge appoints a representative to manage the estate and then the representative must report to the court once all assets have been collected and all debts have been paid.
To ensure the legal process runs smoothly and the decedent’s affairs are properly handled, the probate court is responsible for the following tasks: (1) Validating the will, if there is one; (2) Approving a personal representative, also known as an executor or administrator, to manage the estate; (3) Naming guardians for the decedent’s minor children; (4) Ensuring the decedent’s outstanding debts are paid; (5) Determining rightful beneficiaries if the decedent failed to sign a valid will; (6) Making sure the decedent’s assets are distributed properly in compliance with their Last Will and Testament or the law of intestate succession if the deceased person didn’t leave a will; and (7) Handling the litigation process if someone contests the proposed Last Will and Testament.
The executor of the estate works with a probate attorney to complete the probate process. The court process starts once the Petition for Probate has been filed. At the first hearing, the probate court judge will first verify the will and determine its validity. If the will is valid, the judge will appoint the executor and issues Letters Testamentary which grants the executor legal authority to manage the deceased’s estate. If there is no will, the judge issues Letters of Administration which grants the administrator the legal authority to manage the deceased’s estate. Probate court can take a few months to a few years to complete. The length of the probate process is impacted by the size and complexity of the estate and whether their heirs or next of kin are hard to identify or find.
After the estate representative has received Letters Testamentary from the probate court, they can start settling the estate which includes three main tasks: (1) Gathering assets; (2) Paying any outstanding debts; and (3) Distributing assets according to the last will and testament or by the laws of intestate succession.
After these probate tasks are completed, the petition for final distribution must be filed to obtain a hearing date. At this court hearing, the probate court will confirm that the estate is settled. The judge will verify that the assets have been collected and the debts have been paid and then the court will order that the assets are then distributed to the estate beneficiaries. Once final distribution of all estate assets are made, the estate will close which ends the probate court process.
Trust documents do help Trustees avoid California probate court but sometimes a court appearance is necessary. Usually to petition the court for instructions or for approval of accounting reports. I also petition the court if the decedent left something out of their trust. If I can prove that the Decedent meant to include the valuable asset, I can petition the court to transfer the asset which is usually an investment account or real property of high value. Currently, in California the value of a small estate is $184,500 which means that I go to court if the asset outside of the trust exceeds that amount.
