The following is not intended to be legal advice or substitute for a lawyer. This information is general in nature and only provided as a general outline of multiple and potentially complex issues. Every case is different and seeking the advice of an attorney is highly recommended.
Determine if you need to go to Probate Court or use Simplified Procedures
The good news is that even if the estate was not held in a trust, you still may not need to deal with the court system to administrate the estate! This, however, depends on many issues, such as the monetary value of the estate, what kind of property is contained in the estate, and who is claiming the beneficiary estate. The decision of whether or not Probate Court is required or not also depends on how the asset(s) were held by the decedent and who is the beneficiary of the asset. For instance, if real estate was owned in a joint tenancy with right of survivorship, a bank account is shared or a POD (pay on death) account, then Probate Court is generally not necessary. If the total value of a decedent’s probatable estate is valued less than $150,000, then Probate Court may not be necessary.
What if I have to go to Probate Court?
If the estate you are trying to take over was not held in a trust and valued at over $150,000, you will need to go to Probate Court. Your first step should be to hire an attorney who handles probate matters. Your probate lawyer will help you through the process of a probate court case, such as filing the petition for probate. This will allow you to petition for letter of testamentary or petition for letters of administration. The custodian of the will or the person who has ownership of the will at the deceased’s time of death must do a few things within thirty days of the individual’s death. First, they must take the original will to a probate court clerk’s office, and send a copy of the will to the executor of the estate. If the executor cannot be found a beneficiary may be named as executor. These things are extremely important as failure to execute these responsibilities can result in being sued for damages caused.
What happens after I file the Petition for Probate?
The petition for probate form must be filed in the county the deceased lived in, or if they lived out of the State of California, the county where they owned property. After the case is filed the Probate Clerk will set a hearing date and the petitioner must give notice of the hearing to anyone who may have the right to any part of the estate; including any surviving family even if they are not named in the will. Any of these people who wish to attend the hearing can file a “Request for Special Notice,” which ensures they will receive a copy of paperwork filed by the manager of the estate. It is important to note the petitioner CANNOT mail these notices personally, an adult third party separate from the case must do so. The petitioner must then arrange for the news to be published in a general circulated newspaper. Once all of these things have been done, a Probate Court Examiner will ensure all paperwork was done correctly. Your probate attorney will help you with this process as well.
The Court Case
Your Probate Attorney will help you through the court process, which includes the gathering of assets and filing of, and payment of any debts the estate may have had. Once these things have all been done the court will decide who gets what based off of the information left within the will.
Your Probate Lawyer
As you can see, there is a lot to do in a Probate case. It is highly advised that you find a local Probate Lawyer to help you through this process to avoid any legal or financial issues that may arise if it is not done correctly.