The California probate process follows a timeline set by the state probate laws and the local probate court rules. Once the original will is found it is filed by the court. This can be done by either a relative, the person named executor, or the attorney. It doesn’t matter if it’s a statutory form will, a handwritten will, or prepared by an attorney and signed before witnesses. If the document meets the legal requirements for a will the court will take it. The person named as the executor then files a petition to start the probate case. This is done by the probate attorney. If there is no will or it is lost, the decedent is said to have died intestate and the beneficiaries or heirs will need to petition the court to appoint an administrator of the estate. Executors and Administrators both have the same power, just different titles.
- A court hearing date is usually set five to six weeks later, but can be as long as eight weeks depending on the backlog of probate cases the court has to deal with at any given time. If everything is ok at the hearing, the court will issue letters approving the administrator or executor. You executor can give the letters to the decedent’s bank or whoever controls the decedent’s assets. The letters show the executor has legal authority to represent the estate. Before the hearing a notice of the hearing must be sent to all of decedent’s closest relatives and anyone named in the will, and published in a local newspaper where the decedent resided. After the hearing, creditors have 120 days to file their claims. If the decedent owned real property in another state, an ancillary probate must be opened in the state where the property was located. A probate and estate attorney in that state can be hired to handle the ancillary probate matter.
During the 120 days the probate attorney and executor are waiting for creditors’ claims, they must also inventory the estate and sell anything that needs to be disposed of, prepare tax returns pay the decedent’s debts, pay the beneficiaries their shares, and wind up the affairs of the estate. This may sound simple and straightforward, but the California probate process is actually complex. The waiting time for a hearing in court on the Executors final report to the estate can be over 10 weeks There are also a number of things that may delay the probate such as a will contest, fights among beneficiaries, delays in selling estate assets, court delays, and other unforeseen matters. Also, larger estates with complicated assets will take longer to wind up and close. Probates in California can involve a lot of money and some very complicated issues. We highly recommend that a probate attorney be consulted to keep moving forward, make sure the court rules and state laws are complied with, and make sure the beneficiaries receive what they are entitled to.
If you have additional probate questions and wish to speak to a qualified probate attorney in San Diego, feel free to call me at 858-792-5988.