If you are the person who was appointed or who has volunteered to take care of the legal ramifications of a loved one's death, a basic understanding of the California probate process may help get you started.
- 1.1 Copyright 2013 Timothy P. Murphy www.norcalplanners.cWWhhaatt ttoo DDoo WWhheenn aa LLoovveedd OOnnee DDiieessBy Timothy P. MurphyEstate Planning Attorneywww.norcalplanners.comHelping our clients to build, preserve and pass on their legacies.Northern California Center for Estate Planning and Elder Law
2. 2 Copyright 2013 Timothy P. Murphy www.norcalplanners.comIt may seem impossible, in the midst of all that grief, tothink about the legal ramifications of your loved onesdeath; however, someone does have to do it.If you are the person who was appointed or who hasvolunteered for the position, a basic understanding of theCalifornia probate process may help get you started. Ofcourse each estate is unique, meaning that no twoprobate processes are the same; however, the followingsteps apply to most estates.Locating the Last Will andTestamentThe first step that should be taken after the death of aspouse or close family member is to locate an originalLast Will and Testament, if one exists, as well as anyother relevant estate planning documents.Checking through personal files of the deceased, askingrelatives, and inquiring with the decedents attorneyshould turn up a Will if one exists. The original Will needsto be lodged with the appropriate court to probate theestate. Other estate planning documents may helpdetermine if probate is necessary.Losing a loved one is an emotionally charged periodof time when most people are not thinking clearly.Each state is unique,meaning that no twoprobate processes are thesame, however a few basicsteps apply to most estates. 3. 3 Copyright 2013 Timothy P. Murphy www.norcalplanners.comTestate vs. IntestateWhen a valid Last Will and Testament was left behind, thedecedent is said to have died testate. An intestatedecedent is someone who died without leaving behind avalid Will. When a valid Will exists, the terms of the Willdecide how estate assets are to be distributed in mostcases. When no Will was left behind, the state intestacylaws will decide how assets are distributed. Californiaintestacy laws are complicated; however, the followingillustrates the general order of property distribution in anintestate estate:1. Spouse/registered domestic partner2. Descendants (children, grandchildren etc.)3. Parents4. Siblings5. GrandparentsThe actual order depends on whether the decedentsproperty was community property or separate property.Before a court can determine what percentage an heir willreceive in an intestate estate, the court will first have tolegally determine who the heirs of the estate are throughthe probate proceeding.It is also possible for an estate to have both testate andintestate assets. If a valid Will, or other estate planningdocument, fails to provide for the distribution of an asset,then that asset is considered an intestate asset and willpass through the laws of intestacy.An intestate decedent issomeone who died withoutleaving behind a valid Will.When no Will was leftbehind, the state intestacylaws will decide how assetsare distributed. 4. 4 Copyright 2013 Timothy P. Murphy www.norcalplanners.comNot all estates require formal probate and not allestate assets are included in a formal probate whenone is required.Formal Probate vs. SimplifiedProceduresNot all estates require formal probate and not all estateassets are included in a formal probate when one isrequired. Factors such as the value of estate property, thetype of property, the manner in which assets are titled,and who is claiming the estate assets will decide whethera simplified procedure is available.Assets such as life insurance or retirement accountproceeds will distribute directly to the beneficiary withoutgoing through probate. Real property and bank accountsthat are properly jointly titled may also pass without theneed to go through probate. Under California probatelaws, real and personal property worth under $150,000may also qualify for a simplified procedure; however, thisstill may require the appropriate forms to be filed with theprobate court.Executor vs. AdministratorWhen formal probate is required, someone must overseeand administer the process. If a Last Will and Testamentwas left behind, an executor should have been named inthe Will to fill this position. When a Will was not leftbehind, someone must step forward to fill the position.Typically, this is a spouse/domestic partner, parent, orWhat Every Senior Should KnowAbout ProbateWant to see two groups who make theRepublicans and Democrats look likeone big, happy family? Then put intoone room those attorneys who believein probate and those who prefer theirclients manage their affairs with aRevocable Living Trust. Youll get ascontentious an assembly as you couldpossibly hope for.For seniors, the debate has specialmeaning because the vast majority ofprobate cases revolve around theaffairs of those Americans age 60 andover. This report from the AmericanAcademy of Estate Planning Attorneysexplores the reasons for the debateand offers guidelines to help seniorssteer clear of the fray.This Report is Compliments ofNorthern California Center for EstatePlanning and Elder Law. If you wouldlike a hardcopy of this report pleaseemail email@example.com orcall (916) 437-3500. 5. 5 Copyright 2013 Timothy P. Murphy www.norcalplanners.comadult child. In either case, the court must officially approve the petition and appoint theexecutor or administrator.In order to begin the probate process, the personnamed as executor under the terms of the Will, orthe person who wishes to become theadministrator, must file the appropriate petition inthe probate court asking the court to open theprobate and to officially appoint him or her asexecutor/administrator.The Role ofExecutor/AdministratorThe executor/administrator has numerous dutiesthroughout the probate process. The morecomplicated the estate is the more complicated thejob of executor/administrator will be. Mostexecutors/administrators retain the services of anexperienced and qualified estate planning attorney toassist during the probate process.In order to begin the probate process, the personnamed as executor under the terms of the Will, or theperson who wishes to become the administrator,must file the appropriate petition in the probatecourt asking the court to open the probate and toofficially appoint him or her as executor/administrator. After filing the appropriate documentsto open the probate estate, the executor/administrator must inventory the decedents estateand value each asset. The inventory is then filed with the probate court for review.Taking the Problem Out of Probate isperhaps one of the most comprehensiveguides on the probate process availableand you can get your copy absolutelyfree! 6. 6 Copyright 2013 Timothy P. Murphy www.norcalplanners.comCreditors of the estate must also be notified of the probate.Public notice is also required through publication in a localnewspaper. Creditors are then allowed a specific amount oftime to file a claim against the estate. These claims arereviewed and approved or denied by theexecutor/administrator. If there is a dispute about a claim,the dispute is litigated in court. All approved claims are thenpaid out of available estate assets. Personal income taxesand estate taxes are also paid out of estate assets.Challenges to a WillWhen a potential heir, or known beneficiary, believes that aWill admitted to probate is not a valid Will, a Will contestmay be filed. Despite popular belief, a Will contest cannot befiled simply on the basis that someone is not happy with hisor her gift, or lack thereof, under the Will. In California, thegrounds 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 alegal duty to defend the Will that has been admitted toprobate. A Will contest can take months, even years, toresolve. For the most part, distribution of estate assetscannot occur until a resolution has been reached regardingthe Will contest or the issue has been fully litigated in court.A Will contest cannot befiled simply on the basisthat someone is not happywith his or her gift, or lackthereof, under the Will.If there is a dispute about acreditors claim against theestate, the dispute islitigated in court. 7. 7 Copyright 2013 Timothy P. Murphy www.norcalplanners.comDistributing PropertyWhen all estate assets have been inventoried and valued, allcreditors paid, and all challenges to the Will have beenresolved, only then can the executor/administrator normallybegin to distribute the remaining property to thebeneficiaries or heirs to the estate.About the AuthorTimothy P. Murphy is an estateplanning and elder lawattorney whose practiceemphasizes helping people tobuild, preserve and pass ontheir wealth. He works with hisclients to accomplish their goalswhile avoiding unnecessarycourt proceedings andminimizing or eliminatingexposure to death taxes. Mr.Murphy also assists familiesfacing the myriad of problemsassociated with dealing with aloved ones declining healthand rising needs for care. Hehas practiced law in theSacramento area for 29 years,first with a large firm, and thenwith his own firm since 1987.