When is Probate Required: With or Without a Will, There is a Probate
This is a general overview of the process of administering a decedent’s estate. There are many factual scenarios that would vary the process, but this article will cover the basics for a straightforward probate proceeding.
A probate proceeding is a court-supervised administration of the decedent’s estate regardless of whether a decedent died intestate (dying without a will) or testate (with a will).
A probate is required if the decedent has any direct ownership interest at the time of his or her death in any property (real or personal).
Initiating the Probate Process
The probate process begins with determining whether the decedent has a will. If there is a will, the original must be filed with the court within thirty days after learning of the decedent’s death. The next step is gathering information about the decedent’s assets, creditors, and the heirs (names, addresses, and relationship to the decedent). This information is used in valuing the estate for the initial petition and preparing an inventory and appraisal at a later stage.
The next step is filing a Petition for Probate. If the decedent died without a will, the petitioner will request appointment of an administrator of the estate. If the decedent died with a will, the petitioner will request appointment of an executor.
An estate can be administered with little court supervision by requesting authorization to administer the estate under the Independent Administration of Estate Act (“IAEA”). This should be selected in every probate unless the decedent’s will expressly precludes IAEA administration. A personal representative that is granted full IAEA powers will be able to conduct most estate transactions without obtaining prior court approval, confirmation, or instructions.
Once the Petition is filed, a hearing on the Petition is set for approximately six to eight weeks from the date of filing. Notice of administration of the estate must be given to all interested parties by mail and the Notice published in a newspaper of general circulation.
At the hearing, if the court is satisfied that the Petition was prepared properly, notice was properly given and published, and in intestate cases, the will is adequately “proved,” and no contest is presented, the court will admit the will to probate and direct issuance of the Letters Testamentary, or, in intestate cases, Letters of Administration.
Administrative Duties During Probate
Once the Letters are issued, the administrator must then discover, identify, and take possession and control of the assets of the estate (“marshalling of the assets”).
Once the administrator has marshaled the assets of the estate, he or she must prepare an Inventory and Appraisal (“I&A”). In preparing the I&A, the personal representative is responsible for appraising the “cash” type items such as money, checks for wages earned before death and bank accounts. A court-appointed appraiser must appraise all other assets. The I&A should be filed within four months after issuance of the Letters to the administrator of the estate.
Within four months of the Letters being issued, or thirty days after the personal representative has knowledge of the creditors, the personal representative must also give notice of administration to all known and reasonably ascertainable creditors. Therefore, the personal representative must make a diligent search of the decedent’s personal papers to determine if there are any creditors.
Giving this notice starts the clock for the creditors to file a claim. Once a creditor is given notice, it must file a claim within four months after the Letters are issued or if notice is given less than sixty days before the expiration of the four months after the Letters are issued, the creditor has sixty days after the date the notice is sent.
If a creditor files a claim, the personal representative must either accept the debt, or reject it in whole or in part within thirty days of the claim being filed.
Completing the Probate Process: Closing the Estate
Barring no disputes with heirs or creditors, after the four months or sixty days for creditor claims has elapsed, the estate is ready to close.
To close the estate, the personal representative must file a final account to report the various general charges, credits and transactions in the estate administration and for approval of the accounting, approval of any transactions conducted, request for fees to be paid and for final distribution.
A hearing on the account will be set and notice must be given to all heirs, devisees, and parties requesting special notice and, in some cases, the attorney general and creditors.
At the hearing, the Court will consider any objections filed and will rule on the payment of fees, distribution, and other matters requested in the petition. The court will then issue an order settling the final account, which will provide for the distribution and payment of fees. Once the representative receives the executed order, he or she must distribute the estate assets and pay estate obligations.
When distributing the assets, the representative must have the distributee sign a receipt that he or she received the distribution. This receipt is then filed with the court.
Once the obligations have been paid, the assets are distributed and the receipts filed with the court, the personal representative can request an order for discharge, which will relieve him or her from all liability incurred after the date of the order.
Depending on the case, there may be some post discharge duties, such as notifying the bond company of the discharge.
Spierer, Woodward, Corbalis & Goldberg will oversee both simple and complex probate and trust administrations. Our California probate attorneys have built their reputation by providing efficient and personal legal representation, focusing on probate and trust administration, will contests and trust litigation, and advanced estate planning.
You may also find our free guide to the Top 10 List of Estate Planning Mistakes to be a valuable resource.