Download pdf - Probating an Estate in California: What to Do When a Loved One Dies

1 Copyright 2013 Timothy P. Murphy www.norcalplanners.com

WWhhaatt ttoo DDoo WWhheenn aa LLoovveedd OOnnee DDiieess

By Timothy P. Murphy Estate Planning Attorney www.norcalplanners.com

Helping our clients to build, preserve and pass on their legacies.

Northern California Center for Estate Planning and Elder Law

http://www.norcalplanners.com/


It may seem impossible, in the midst of all that grief, to

think about the legal ramifications of your loved one’s

death; however, someone does have to do it.

If you are the person who was appointed or who has

volunteered for the position, a basic understanding of the

California probate process may help get you started. Of

course each estate is unique, meaning that no two

probate processes are the same; however, the following

steps apply to most estates.

Locating the Last Will and Testament

The first step that should be taken after the death of a

spouse or close family member is to locate an original

Last Will and Testament, if one exists, as well as any

other relevant estate planning documents.

Checking through personal files of the deceased, asking

relatives, and inquiring with the decedent’s attorney

should turn up a Will if one exists. The original Will needs

to be lodged with the appropriate court to probate the

estate. Other estate planning documents may help

determine if probate is necessary.

Losing a loved one is an emotionally charged period of time when most people are not thinking clearly.

Each state is unique,

meaning that no two

probate processes are the

same, however a few basic

steps apply to most estates.


Testate vs. Intestate

When a valid Last Will and Testament was left behind, the

decedent is said to have died “testate.” An “intestate”

decedent is someone who died without leaving behind a

valid Will. When a valid Will exists, the terms of the Will

decide how estate assets are to be distributed in most

cases. When no Will was left behind, the state intestacy

laws will decide how assets are distributed. California

intestacy laws are complicated; however, the following

illustrates the general order of property distribution in an

intestate estate:

1. Spouse/registered domestic partner

2. Descendants (children, grandchildren etc.)

3. Parents

4. Siblings

5. Grandparents

The actual order depends on whether the decedent’s

property was community property or separate property.

Before a court can determine what percentage an heir will

receive in an intestate estate, the court will first have to

legally determine who the heirs of the estate are through

the probate proceeding.

It is also possible for an estate to have both testate and

intestate assets. If a valid Will, or other estate planning

document, fails to provide for the distribution of an asset,

then that asset is considered an intestate asset and will

pass through the laws of intestacy.

An “intestate” decedent is

someone who died without

leaving behind a valid Will.

When no Will was left

behind, the state intestacy

laws will decide how assets

are distributed.


Not all estates require formal probate and not all estate assets are included in a formal probate when one is required.

Formal Probate vs. Simplified Procedures

Not all estates require formal probate and not all estate

assets are included in a formal probate when one is

required. Factors such as the value of estate property, the

type of property, the manner in which assets are titled,

and who is claiming the estate assets will decide whether

a simplified procedure is available.

Assets such as life insurance or retirement account

proceeds will distribute directly to the beneficiary without

going through probate. Real property and bank accounts

that are properly jointly titled may also pass without the

need to go through probate. Under California probate

laws, real and personal property worth under $150,000

may also qualify for a simplified procedure; however, this

still may require the appropriate forms to be filed with the

probate court.

Executor vs. Administrator

When formal probate is required, someone must oversee

and administer the process. If a Last Will and Testament

was left behind, an executor should have been named in

the Will to fill this position. When a Will was not left

behind, someone must step forward to fill the position.

Typically, this is a spouse/domestic partner, parent, or

What Every Senior Should Know

About Probate

Want to see two groups who make the

Republicans and Democrats look like

one big, happy family? Then put into

one room those attorneys who believe

in probate and those who prefer their

clients manage their affairs with a

Revocable Living Trust. You’ll get as

contentious an assembly as you could

possibly hope for.

For seniors, the debate has special

meaning because the vast majority of

probate cases revolve around the

affairs of those Americans age 60 and

over. This report from the American

Academy of Estate Planning Attorneys

explores the reasons for the debate

and offers guidelines to help seniors

steer clear of the fray.

This Report is Compliments of

Northern California Center for Estate

Planning and Elder Law. If you would

like a hardcopy of this report please

email [email protected] or

call (916) 437-3500.


adult child. In either case, the court must officially approve the petition and appoint the

executor or administrator.

In order to begin the probate process, the person named as executor under the terms of the Will, or the person who wishes to become the administrator, must file the appropriate petition in the probate court asking the court to open the probate and to officially appoint him or her as executor/administrator.

The Role of Executor/Administrator

The executor/administrator has numerous duties

throughout the probate process. The more

complicated the estate is the more complicated the

job of executor/administrator will be. Most

executors/administrators retain the services of an

experienced and qualified estate planning attorney to

assist during the probate process.

In order to begin the probate process, the person

named as executor under the terms of the Will, or the

person who wishes to become the administrator,

must file the appropriate petition in the probate

court asking the court to open the probate and to

officially appoint him or her as executor/administrator. After filing the appropriate documents

to open the probate estate, the executor/administrator must inventory the decedent’s estate

and value each asset. The inventory is then filed with the probate court for review.

Taking the “Problem” Out of Probate is perhaps one of the most comprehensive guides on the probate process available

and you can get your copy absolutely free!


Creditors of the estate must also be notified of the probate.

Public notice is also required through publication in a local

newspaper. Creditors are then allowed a specific amount of

time to file a claim against the estate. These claims are

reviewed and approved or denied by the

executor/administrator. If there is a dispute about a claim,

the dispute is litigated in court. All approved claims are then

paid out of available estate assets. Personal income taxes

and estate taxes are also paid out of estate assets.

Challenges to a Will

When a potential heir, or known beneficiary, believes that a

Will admitted to probate is not a valid Will, a Will contest

may be filed. Despite popular belief, a Will contest cannot be

filed simply on the basis that someone is not happy with his

or her gift, or lack thereof, under the Will. In California, the

grounds on which a Will may be contested include:

Mental incapacity

Undue influence

Fraud or mistake

Revocation or existence of later executed Will

Failure to meet formalities (technical deficiencies)

If a Will contest is filed, the executor/administrator has a

legal duty to defend the Will that has been admitted to

probate. A Will contest can take months, even years, to

resolve. For the most part, distribution of estate assets

cannot occur until a resolution has been reached regarding

the Will contest or the issue has been fully litigated in court.

A Will contest cannot be

filed simply on the basis

that someone is not happy

with his or her gift, or lack

thereof, under the Will.

If there is a dispute about a

creditor’s claim against the

estate, the dispute is

litigated in court.


Distributing Property

When all estate assets have been inventoried and valued, all

creditors paid, and all challenges to the Will have been

resolved, only then can the executor/administrator normally

begin to distribute the remaining property to the

beneficiaries or heirs to the estate.

About the Author

Timothy P. Murphy is an estate

planning and elder law

attorney whose practice

emphasizes helping people to

build, preserve and pass on

their wealth. He works with his

clients to accomplish their goals

while avoiding unnecessary

court proceedings and

minimizing or eliminating

exposure to death taxes. Mr.

Murphy also assists families

facing the myriad of problems

associated with dealing with a

loved one’s declining health

and rising needs for care. He

has practiced law in the

Sacramento area for 29 years,

first with a large firm, and then

with his own firm since 1987.

http://www.norcalplanners.com/estate_planning/estate-planning/