When a person dies, their entire estate (properties, assets, possessions, debts, etc.) are administered to their heirs and beneficiaries. This process, which we refer to as administering the decedent’s estate, goes through something called the probate process.
Typically, the probate process is handled by a stated representative – executor, trustee or administer – via a will and/or trust. This simplifies the probate process somewhat. However, if someone dies without a will or trust in place, the estate is turned over to a special court – called a probate court – and is administered and distributed from there.
In either case, heirs or beneficiaries have the right to facilitate the probate process on their own, but this requires a tremendous amount of time, energy, and legal know-how. That is why most people hire a qualified estate attorney. Consultations can help guide the way through the paperwork and protocols required to complete the probate process from start to finish.
The Probate Process Takes Place in 4 Basic Steps
While it is complex and can feel overwhelming, the probate process ultimately consists of four, main steps.
Step One: The executor files the petition and gives notice to heirs/beneficiaries.
The executor stated in the most current will (the last will) is required to file the petition with the probate court and provide notice to all of the stated heirs and beneficiaries.
If there is a stated executor, the court will admit the will and name the executor stated on the will and this individual becomes the personal representative for the estate. If there is no will, the probate court will name a personal representative. This could be a relative – such as a child, sibling, or grandchild – or it may be a representative from the probate court, depending on the situation.
If there is an objection to the petition – and/or to the person named by the court to serve as executor or administrator – members can file an objection with the court. A notice of public hearing is also filed with the local newspaper(s) to give the public (prospective heirs/beneficiaries) the opportunity to learn about the petition, and to alert any unknown creditors.
Step Two: Giving notice and appraising the estate
Once the probate process has begun, the court’s stated representative must provide written notice to any creditors of the estate – and creditors must make their claim within a stated amount of time. In the state of California, this is typically no more than four months after the probate estate was opened, or within 60 days from the postmarked notice.
All of the decedent’s assets – including property, business interests, investments, bonds, retirement accounts, etc. – must be appraised. Non-cash assets must also be appraised unless they were accounted for in the will. For example, if your grandmother stated her prized diamond earrings were to go to you in her will, there is no need for an appraisal. If, however, her jewelry collection is valuable and was unaccounted for in the will, an appraisal would be done and the total value divided up equally between her heirs.
The appraisal process for non-cash assets is handled by a court-appointed appraiser who establishes the market value for assets such as:
- Real property
- Business-related property
- Home furnishings
Step Three: Pay all estate-related bills and debts
Once the value of the estate is established, the personal representative must also account for all of the unpaid costs associated with the estate. This includes costs or fees relating to:
- Medical expenses
- Funeral expenses
- Remaining bills, utilities, car payments, and any other outstanding bills
- Credit debts
- Probate fees
- Unpaid estate planning fees
If liquid/cash assets do not cover the estate’s remaining expenses and debts, property, collectibles, and/or other valuables are sold to cover the outstanding financial obligations.
Step Four: Legal titled property is distributed during the probate process
After the waiting period for creditors has expired, and all of the estate’s obligations have been paid, the representative petitions the court to distribute and/or transfer the remaining assets to the various heirs and beneficiaries. The distributions are distributed according to the last will.
If there is no will in place, assets are distributed in accordance with California probate law, which has a stated hierarchy of “heirs,” such as a spouse, children, step-children, grandchildren, etc. In cases where a set amount has been designated to be put in a trust for the spouse, a minor child/grandchild, or an adult child with special needs, that account is established and funded from the estate.
The personal representative must then get all of the legal paperwork in order to transfer properties, titles, stocks, liquidate assets, etc., and distribute them to the appropriate recipients.
Because of the legal regulations governing the probate process, and the amount of time and detailed paperwork required to facilitate the process from start-to-finish, most personal representatives work with a legal professional who specializes in probate processes to ensure they do everything correctly.