Prepare for The Future with Wills & Trusts

Wills, Estates, and Probate

Print Español

Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died. The property that a person leaves behind when they die is called the “decedent’s estate.” The “decedent” is the person who died. Their “estate” is the property they owned when they died.To transfer or inherit property after someone dies, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court.

It is not always easy to tell whether you need to go to court or qualify to use a different procedure. There are a lot of new terms in these types of cases that you should know. Click for a short list of words related to wills and estates and what they mean.

This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case

To find a lawyer, click for help finding your bar association's lawyer referral service or call 1-866-442-2529.

What are the different ways an estate can be transferred after someone dies?

It depends. There are some ways that do not involve going to probate court.

Here are some common examples:

• If a particular asset (like a retirement plan, life insurance policy, or a bank account) already has a named beneficiary, that asset goes to the beneficiary (or beneficiaries, if there are more than one) without going to court.
• If a house is owned by two or more people as joint tenants, the other owners have the right of survivorship, which means that they inherit the entire property in their name.
• Real estate sometimes can be transferred without court with a transfer-on-death deed (also called a beneficiary deed).
• Property in living trusts can be transferred without going to court.

There are also some simplified procedures for estates that are under $166,250. Read Simplified Procedures to Transfer an Estate to find out different ways to transfer property that do not involve going to court.

Any portions of the estate that can’t be transferred more informally will likely have to be dealt with in probate court. How the estate is dealt with will partly depend on whether the decedent died with a will or without one.

What Is “Probate”?

Probate means that there is a court case that deals with:

• Deciding if a will exists and is valid;
• Figuring out who are the decedent’s heirs or beneficiaries;
• Figuring out how much the decedent’s property is worth;
• Taking care of the decedent’s financial responsibilities; and
• Transferring the decedent’s property to the heirs or beneficiaries.

In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.

First Steps in Dealing with an Estate When Someone Dies

The first thing is to figure out who will be the representative of the estate. If there is a will, the representative is the executor named in the will.

If there is no will, it depends whether the case needs to go to probate court or not.

• If the estate is small or the estate can pass to other people through simplified procedures informally, then a close relative, often the person who will inherit most of what is left behind can be the informal estate representative.
• If the case has to go through a formal probate court case, then the court appoints an administrator to be the estate representative.

If someone dies without a will, the law gives a priority list for who should be the administrator. You can find the full list in Probate Code §8461. As you may imagine, the surviving spouse or legal domestic partner is at the top of the list, with children as the second category, grandchildren as the third, and so on.

Sometimes, it is not clear who should be estate representative, like, if the will does not name an executor and more than one person has the same priority, or there is a disagreement between heirs as to who should serve, or the person with the higher propriety has a conflict of interest, and many more. Talk to a lawyer if this may be your situation.

If you are the estate representative, keep in mind that:

• You must be trustworthy, very organized, and act diligently and responsibly.
• You must always stay informed of your responsibilities, keep good records, and communicate with everyone involved.
• Until the property goes to the right beneficiary, you are responsible for managing it in everyone’s best interests. This is called a “fiduciary duty.”
• You have a duty to act responsibly and honestly. If you break your duty, you may end up being personally responsible for any loss to the value of the estate.

As an estate representative, there are a number of preliminary duties you have:

• Take possession of the property and safeguard it until everything is distributed and any debts are paid. For example, if the assets are in the decedent’s house, make sure the house is secure, and store any important papers and valuables in a safe place.
• Find the will, if there is one.
• Get certified copies of the death certificate. You will need them for many of your duties.
• Collect any assets and death benefits, if you can, such as bank account funds, life insurance proceeds, annuity benefits, Social Security death and survivor benefits, veteran’s benefits, etc.
• Figure out who all the heirs and beneficiaries may be.
• Check out any safe-deposit boxes for important papers or other valuables.
• Collect the decedent’s mail, to make sure you don’t miss anything important.
• Cancel credit cards and subscriptions.
• Manage “digital assets” (like online accounts, photos and documents stored on line, etc.). You may need to get email access for important information.
• Notify the Franchise Tax Board
• Notify the Social Security Administration if the decedent was receiving monthly social security benefits.
• Prepare the decedent’s final income tax returns.
• 
  

Important: These are just some of the steps you will have to take. Make sure you are doing all you need as estate representative to take care of the estate and help make sure it gets distributed correctly.

“Heirs” refers to people who have the right to inherit when someone dies without leaving a will (called “dying intestate”). Beneficiaries are the people who inherit according to a will.

Who the beneficiaries or heirs are is usually decided by:

• The terms of the will,
   
• State law, if there is no will, or, if there is a problem with the will, or
   
• Other estate planning documents like beneficiary designations (like in retirement accounts), living trusts, or joint tenancy arrangements.

It is not always straightforward to figure out who heirs or beneficiaries are. Even if there is a will, maybe it was not up to date and the new spouse was not included or the will was not changed after a divorce, or a beneficiary named in the will already died, and many other situations. You may need to talk to a lawyer to help you figure out who the heirs or beneficiaries are.

You will need to carefully identify all of the decedent’s property, everything they owned. Then, you will have to make an inventory of everything.

To identify the property, here is some helpful information:

• Real property refers to land and things permanently on land, like houses. It also includes things like a real estate lease of at least 10-year term or with an option to buy. If you are not sure if something qualifies as real property, talk to a lawyer.
• Personal property is all property that is not real, and it can be tangible or intangible:
• Tangible property are things you can touch, like cars, boats, jewelry, furniture, antiques, etc.
• Intangible property is abstract. It is a right to be paid money or have some type of power and it is usually laid out in writing. For example, stocks and bonds are intangible and the stock certificate is the document giving you ownership over the stock so you can sell it.
• Figure out how the property you found is owned. Was it just owned by the decedent, or did they own it with someone else? Was it bought during a marriage, making it community property, or before the marriage? Maybe it was a mix of both? These questions can be difficult to answer on your own.

Once you have identified all the property and have all the necessary papers, you will have to make a list of assets and debts. It should list all the property the decedent owned when they died. For your list, write down:

• Each asset, with a brief description,
• The value of the asset as of the date of death
• How the decedent owned the asset (like, separately, or in joint tenancy, or as community property, etc.)
• What portion of the asset the decedent owned, and the value of the decedent’s portion, and
• Whether anyone could file a claim specifically against the asset for repayment of a loan or other debt.

Once you know what property the decedent had when they died, who should get what, and what the value of everything is, you need to figure out how to transfer it. As we have explained, there may be simplified procedures available, or it may have to be done formally in probate court.

Read Simplified Procedures to Transfer an Estate to see if the estate, or parts of it, may qualify for a simplified procedure.

If the estate, or parts of it, will not qualify for a simplified procedure, read about Estates That May Need Formal Probate.

Estates That May Need Formal Probate

Estates That May Need Formal Probate

Print Español

Any assets that do not qualify for a simple transfer process will likely have to go through formal probate. And, if the dead person’s property is worth more than $166,250, none of the exceptions apply. You must go to court and start a probate case.To do this, you must file a Petition for Probate (form DE-111). This one form has different options, such as:

• Petition for Probate of Will and for Letters Testamentary
• Petition for Letters of Administration

Talk to a lawyer if you are not sure which option you should choose on this form.

Steps to Take If the Case Belongs in Probate Court

1. The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:

• Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
• Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).

If the custodian does not do these things, he or she can be sued for damages caused.

NOTE: If there is no will and a court case is needed, the court will appoint  an administrator to manage the estate during the probate process. The  person who wants to be the administrator must file a Petition for Letters of Administration (form DE-111). The administrator usually is the spouse, domestic partner, or close relative of the dead person.

2. Someone, called "the petitioner," must start a case in court by filing a Petition for Probate (form DE-111). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).

      The Petition for Probate has different options, like:

• Petition for Probate of Will and for Letters Testamentary
• Petition for Probate of Will and for Letters of Administration with Will Annexed
• Petition for Letters of Administration

Note: To start a probate case you will need more forms than just the Petition for Probate form.  Talk to a lawyer for help with your case.

3. After a probate case is filed:

• The probate clerk sets a hearing date.
• The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (form DE-154), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
• The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
• The petitioner must arrange for notice to be published in a newspaper of general circulation.
• A court probate examiner reviews the case before the hearing to see if it was done correctly.
• Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
• The personal representative gathers up the assets and prepares an Inventory and Appraisal (form DE-160) to be filed.  The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county. (Get more information on probate referees.)
• The personal representative provides formal notice to creditors with the Notice of Administration to Creditors (form DE-157) and pays the debts.
• A final personal income tax return is prepared for the person who died.
• The probate court figures out who gets what property.
• The personal representative may be required to file a Report of Sale and Petition for Order Confirming Sale of Real Property (form DE-260) so that sales of real property are confirmed by the court.
• If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
• The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
• After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.

Call (818) 996-6563 for a consultation today!

The Difference Between a Will & Trust

Call (818) 996-6563 now – we can help draft up your will and trust today!