Probating a will means following it through a court process of validation and asset distribution. If the court finds the will truly represents a decedent’s intentions, the court oversees the work of the executor -- an individual named in the will to distribute the assets. In California, the process usually takes between nine and 14 months, depending on whether the decedent’s family raises objections. Executors must carefully perform each step in the probate process to avoid exposing themselves to messy litigation.
Determine if probate is required. If the estate’s value is under $100,000 and the only heir is a surviving spouse, it isn’t necessary to probate the will. Just transfer the decedent’s personal and real property to the spouse by completing form affidavits and petitions to determine property succession available at most banks. Mail the completed affidavits to the superior court in the California county where the decedent lived.
Contact the will’s custodian if probate is necessary. Request that the original will be taken to the probate clerk at the California county superior court.
File an executor’s petition with the court. This document asks that you formally be appointed executor, even though you are identified as such in the will. Provide details about the decedent, his beneficiaries and the estate. The court will schedule a hearing on your petition.
Have an individual over age 18 mail notices sent to the decedent’s heirs and relatives to advise them of the hearing date. In California, the executor is not permitted to mail these notices.
Attend the probate hearing. The judge will consider the recommendation of a probate examiner -- a court employee who reviews the file to make sure you have provided the information required by law. If your petition is denied, you will have a chance to challenge the examiner’s findings at a second petition hearing.
Make a list of the decedent’s assets and send it to a probate referee -- a neutral appraiser appointed by the California Controller. The referee assigns a value to each asset then returns the list to you for filing with the probate clerk.
Keep an activity log during the entire probate process. Record the collection and disbursement of all assets and your expenses until it appears all accounts have been settled. Send the completed log to the probate examiners for further review.
File a petition with the probate court to close the estate. If any assets remain to be distributed, request that the court issue a final distribution order. Request that the court apply the provisions of the California Probate Code permitting the executor to collect fees for his work if none are specified in the will. Once the court approves of your fee request, it will discharge you from your duties as executor.
- Sacramento County Public Law Library; Wills, Trusts, and Estate Planning; December 2010
- San Francisco Superior Court; What Happens to Someone’s Property When They Die?; May 2003
- Superior Court of San Francisco; Wills and Decedents’ Estates; 2011
- State of California Legislative Counsel: California Probate Code Section 10800-10805; 2011
- State of California Legislative Counsel; California Probate Code; 2011
- Sacramento County Public Law Library; Decedents’ Estates; November 2010
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