Probate in California

Probate is a mechanism to clear title to assets and to ensure that the correct individuals/entities receive the decedent's estate.

Every state has its own procedures. California's probate process evolved over a number of years, but the basics have remained the same for a long time. The probate process begins when someone files a petition in the court to be the executor/administrator of the decedent's estate. If the decedent left a Will, then typically it is the person named in the Will. If the person did not leave a Will or did not name an executor in the Will, typically a close family member petitions to be the administrator/executor with Will annexed.

After the petition is filed in the probate court, it is set for hearing approximately a month later. In the event that no one opposes the person petitioning the court, the petitioner is named the executor/administrator of the estate. The Judge may order a bond to be filed by the executor/administrator. The probate court will also appoint an appraiser to appraise the estate.

Once the person officially assumes the role of administrator/executor, a four month creditor's claims period follows. During this time, creditors of the decedent can file a claim. It is the duty of the administrator/executor to determine the validity of those claims and to pay them from estate funds if they are valid. The estate cannot be closed - the probate cannot be finished - until all creditors claims have been satisfied one way or another.

It is during the creditor's claim period that the probate attorney provides the court appointed probate appraiser with the information concerning the decedent's estate. The probate appraiser then appraises the assets based upon their value at the date of death. Ultimately the attorney files the appraisal with the court.

Approximately four months after the hearing date for the petition for probate, if the appraisal has been filed with the court and the creditor's claims have been satisfactorily dealt with, a petition for final distribution is prepared by the probate attorney, signed by the administrator/executor and filed with the court. It is set for hearing approximately one month later and if everything goes right, the court enters an order of final distribution.

Thus, from the time a petition for probate has been filed under the court's final order, at a minimum six months have elapsed. However, if the administrator/executor was given full authority at the initial hearing, he/she would be able to act on behalf of the estate within 35 days of the filing of the petition for probate even though the probate is continuing.