The California Probate Process

If probate is necessary, the executor named in the will must come forward to submit the will and file a Petition for Probate to open a probate case. If there is no will or the executor is unavailable, a family member will typically ask the court to be appointed as administrator. Executors and administrators both perform the same tasks, with the difference being that an executor is a role established and assigned within the text of a valid will, while an administrator is appointed by the court in the absence of such a will. To begin the process, a filing fee must be paid to the probate court. Additional forms may also need to be filed depending on the nature of the case and the assets involved. If there is a will, it must be declared legally valid, which is typically accomplished by having witnesses to the will’s signing submit a sworn statement to the court. The court will then issue Letters Testamentary (for a will) or Letters of Administration (without a will) to appoint the executor or administrator, granting them legal authority to distribute the estate’s assets.

The executor has a fiduciary duty to manage the assets and property within the estate according to the best interests of the estate and the beneficiaries. They are required to keep estate funds in a separate account, maintain accurate records, regularly submit information about any actions or transactions to the court, and stay in communication with all involved parties. During probate, it is also the executor’s responsibility to protect the assets, such as by keeping insurance active, maintaining real estate, and safeguarding valuables from damage or theft. If they fail to uphold their fiduciary duty, such as by using assets for their own financial gain or failing to protect them from avoidable harm or depreciation, they can be held legally liable for any loss to the estate.

An executor or administrator must perform the following duties:

• Find, review, and organize all estate documents, including a death certificate
• Collect the decedent’s mail and check their safe-deposit box for important papers
• Identify the beneficiaries and heirs of the estate
• Formally notify beneficiaries, heirs, certain family members, and creditors of their interest in the estate and inform these parties that the probate process has begun
• Notify other entities involved in the estate’s financial interests or obligations, such as landlords, the Social Security Administration, the DMV, and the post office
• Cancel the decedent’s credit cards and subscriptions
• Help beneficiaries claim access to life insurance proceeds, annuities, Social Security death and survivor benefits, veteran’s benefits, etc.
• Compile a detailed inventory of all of the estate’s assets (and debts) which includes a brief description of each asset, its value (see next bullet point), how it was owned (individual or community property, in joint tenancy, etc.), and, if applicable, which portion was owned by the decedent; this documentation should also include information about any known party who could file a claim against the asset(s) for repayment of a loan or debt
• Have all assets professionally appraised
• Verify ownership of estate assets to determine which must be transferred through probate (the assistance of an estate planning attorney can be a crucial asset for this step in particular)
• Obtain access to digital assets, such as email accounts and any other data or media stored online
• Coordinate with trustees if any of the estate’s assets have been placed in trust
• Pay any valid creditor claims against the estate
• Prepare and file the decedent’s final income tax return

In most cases, the executor can sell estate property, pay taxes, make investments, or respond to claims from creditors without court approval. Other actions, such as selling real estate, require prior approval from the court. After all duties have been fulfilled, the executor will submit a Final Accounting and Petition for Final Distribution to the probate court, which details all activity related to the estate, payment of debts, and final plans for asset distribution. The executor will ask the court to formally close the probate case. When the case is closed, they can distribute estate assets to designated beneficiaries and file proof of distribution with the court.

Can You Do Probate Without a Lawyer in California?

Navigating any legal issue can be intimidating, but undergoing the complex probate process after the death of a loved one is especially challenging. Although it is not legally required for an executor, heir, or any other party to secure legal representation to complete the probate process, hiring a Palm Springs probate attorney makes the process much easier, quicker, and less prone to error. An attorney can explain your responsibilities, answer your questions, and give you legal advice if you experience any difficulties. They can expertly guide you through every step of the probate process, from gathering the appropriate documentation to resolving issues with creditors.

Any number of potential issues may arise in the course of settling an estate, such as ambiguities in the will, disagreements between beneficiaries, or an executor who fails to perform their duties in a timely manner. Family members who feel slighted may even come forward to contest the validity of the will by claiming the decedent created their will while under duress, coercion, or not in a sound state of mind. A Palm Springs probate attorney can respond to such claims, mediate disputes, represent you in any probate litigation hearings, and advocate for assets to be distributed in a certain way if a will is deemed legally invalid. Working with an attorney also ensures that you follow the law, which protects you from any penalties you might incur for mistakes, oversights, or delays.

How Much are Probate Lawyers in CA?

Unlike other states where probate lawyers charge by the hour or set a flat fee for their services, in California, the state Probate Code sets statutory fees paid to attorneys and personal representatives for the administration of the estate. A statutory fee is calculated as a percentage of the value of the estate assets that pass through probate, including real estate, personal property, business interests, investments, and bank accounts. The court does not include the debts of the estate for the purposes of determining statutory fees. For example, a house appraised at $500,000 with an outstanding mortgage of $200,000 would be valued at $500,000. If the attorney performs extraordinary services, they may petition the court for a higher amount.

According to the Probate Code, the statutory probate fees for attorneys are as follows:

• 4% of the first $100,000
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $9 million
• 0.5% of the next $15 million

The court will determine a reasonable fee for estates valued at over $25 million.

Secure the Expert Representation You Need for Probate Litigation

Many people believe that writing a will is sufficient for ensuring their wishes are faithfully carried out after their death, but only a complete estate plan can protect your assets and loved ones from the uncertainty and inconvenience of an extended probate process. Whether you have been named as the executor of an estate or are interested in protecting your legacy with an estate plan, Sweeney Probate Law can help you.

I am William Sweeney, an accomplished Palm Springs probate attorney with more than four decades of experience practicing probate law in California. I offer the compassionate, comprehensive, and dedicated counsel you need to resolve your probate concerns and obtain the best outcome in your case. Contact our office today to schedule an initial consultation.