Probate is the court procedure that transfers the legal ownership
of people's property after they die. The department in superior court
that handles probate matters often is called probate court. The probate
judge supervises the assets and liabilities of people who die while
they are residents of California or who leave property inside the
state. This includes payment of the dead person's debts and the distribution
of property to beneficiaries.
The person who handles the estate under the terms of the will is the
executor named in the will. If a will does not exist, or the will
does not name an executor, the court will appoint an administrator
to manage and distribute the assets.
A dead person's estate will not be handled in probate court if there
is a surviving spouse and the estate consists entirely of community
property, or the dead person's property is held in joint tenancy with
another person. Property transferred by gift before death, or placed
into certain types of "living trusts," also is not subject
OF THE STEPS INVOLVED
Within 30 days after a person dies, the person who has the decedent's
will must file it with the superior court of the county in which the
decedent lived. The probate judge makes sure it is the decedent's
last will, appoints the executor named in the will (or appoints an
administrator), and supervises the executor's work.
The probate court issues "Letters Testamentary" or "Letters
of Administration" naming the executor or administrator. During
the administration of the estate, certified copies of these letters
may be needed by banks, title companies, tax authorities, and others.
The law requires publication of a Notice of Petition to Administer
Estate. This is a Notice to all creditors to file their claims against
the estate. Creditors usually have four months to file their claims.
Probate court oversees the distribution of the estate under the terms
of the will. If no will exists, state laws determine who gets the
dead person's estate. The court will direct distribution of the estate
according to those laws.
Probate matters tend to move along slowly. Many detailed steps are
required to ensure that all creditors are paid, all property is identified,
all taxes are paid, and title to each asset is properly transferred.
Typically, it takes four to six weeks after the decedent's death to
appoint an executor or administrator. Even in the most routine probates,
the law requires a minimum four-month wait after the Notice to creditors
has been issued before any action can be taken to distribute or close
the estate. And if an estate requires the preparation and filing of
a federal estate tax return (IRS Form 706), the process can be expected
to take longer. The financial circumstances of each decedent vary
widely, so some estates may require much more court involvement than
TO GET MORE INFORMATION
Helpful pamphlets that explain how to write a will and how to do estate
planning usually are available free from the Public Law Center located
on the first floor of the courthouse.
You may also wish to consult with an attorney, especially when multiple
heirs or varied types of assets are involved.