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California's probate process for a will

Probate is the legal process of taking care of a person's assets and financial affairs after he or she dies. Even if a person has a will, the probate process assures that the decedent's wishes are carried out.

California probate proceedings usually take a minimum of eight months, but can go on for several years. They take place in the county where the decedent resided.

What are the steps in the probate process?

  1. The executor named in the will files the will and a petition to be legally appointed as the executor with the Superior Court.
  2. Notices of a hearing date and time is sent to heirs and relatives. This hearing is where any objections to the petition for executor or the validity of the will can be given. If objections exist, another person may be appointed executor, or the validity of the will may not be upheld.
  3. The executor carries out his or her duties, which include taking inventory of all assets, paying bills and creditors, filing tax returns and managing estate assets.
  4. When the executor has everything in order, he or she files another petition with the court requesting distribution of the estate to heirs.
  5. When the petition is granted, the distribution takes place and any final documents, such as tax returns, are filed.

What is the cost of probate?

Filing probate is usually done by an attorney, who is also often the executor of the will. California Probate Code section 10810 sets the fees that an attorney can charge for probate. If there is an executor and an attorney, the fees can be double. If a probate process becomes overly complicated, the judge may approve higher fees.

Is there a way to avoid the probate process?

If you have a living trust in lieu of a will, trusts do not have to go through probate. Administration of a living trust is usually less expensive, and distribution of assets usually takes less time.

If there is not a will, but a surviving spouse, a spousal property petition may be used to turn the estate over to the spouse.

For small estates valued less than $150,000, probate is not necessary. An affidavit of declaration can be used instead.

For more information on trusts, small estates or spousal inheritances, you should speak to your estate attorney. Proper planning can make things much easier for your surviving loved ones.

Source: California Living Trusts, "California Probate," accessed March 22, 2018

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