The Executor’s Guide to California Probate Law

Everyone knows that losing someone close is hard, but no one ever tells you how much work is involved after a family member passes.

Maybe it isn’t mentioned because it feels insensitive and trite to complain about paperwork, or perhaps those who experienced it went through the weeks and months in a daze without—really processing what was happening.

The latter is dangerous – if you don’t know what to expect and how to navigate the bureaucracies after a death, you could leave money on the table or set yourself up for even more work down the road.

Luckily, some more complicated and involved processes have the most significant infrastructure and resources available, so you aren’t flying blind through the legal system while emotionally distraught.

Probate is a long, involved, and commonly-needed legal process– but few other functions are as well documented as probate navigation, especially California’s probate law.

In California, probate is required when the deceased held any property in their own name at the time of their death. This includes real estate, vehicles, bank accounts, stocks and bonds, and personal belongings.

Contrary to belief; even if the deceased person had a will, or if the estate meets the requirements for a small estate, the final will still needs to go through probate.

Probate is the legal process of proving that a will is valid and distributing the deceased person's assets according to their wishes.

The court appoints an executor to oversee the probate process, which can take months or even years to complete. Although probate can be a lengthy and complicated process, it is often necessary in order to settle an estate.

In some cases, probate can be entirely avoided:

• Some assets, like life insurance and real estate with a named surviving beneficiary, automatically transfer to the named beneficiary. To avoid probate, you may have to designate some of these assets as “payable on death,” or POD.

• An adequately designated and funded living trust can avoid the probate process, assuming there are no beneficiary objections after death.

• Assets registered “with rights of survivorship,” or WROS. These are commonly used for investment accounts.

• Assets and real property owned in joint tenancy with a spouse.

• Assets with a valid transfer on death deed

This means that probate is the post-death process by default, but many legal and administrative tools are available to avoid or reduce the probate burden.

Unfortunately, unlike some states, California law does not allow much time to grieve before initiating and completing probate.

California law dictates that one year is the maximum time allowed for an executor or representative to “complete” probate, although accounting for complexities and delays.

That might sound like a long time, but here’s the catch: you only have 30 days after death to file a petition.

California allows representatives to file status reports throughout the process to explain delays. The bottom line is that filing needs to occur before one-year post death, but the exact completion window is flexible.

The initial filing window can also be expanded to 18 months if the representative needs to file a federal estate tax statement, although the status report justifying the delay is required.

Although California law sets one year as the goal for probate completion, the actual process can take much longer. No matter what, though, you can expect the probate sequencing to look similar for most cases:

1. Within 30 days and after the decedent’s paperwork is gathered, a petition goes to the California Supreme Court requesting a hearing. A hearing is usually scheduled within the month.
2. Before the court holds a hearing, a notice for the hearing is published in the county or state newspaper. This may seem antiquated in today’s digital age, but the publication serves to formally notify beneficiaries and creditors without the hassle of hunting everyone down.
3. In court, the will is “proven” valid and binding. California has some methods, in addition to living trusts and other probate bypasses, to reduce the burden of proving a will. It’s best to consult with a lawyer if this is a route you’d like to take.
4. After the will is proven, the executor or representative is granted authority to administer the estate - and itemizes all assets required for probate and their values. The court requires this, and the court may also demand third-party appraisals.
5. Before beneficiaries are paid from the estate, the court pays creditors to whom the decedent owed money. Creditors have up to four months to submit a claim, so no estate payments to beneficiaries can happen within this window.
6. After creditors are paid, estate taxes are settled. Beneficiaries can be paid before taxes are managed, but it’s best to do so beforehand to avoid personal liability for the executor/representative and the beneficiaries.
7. Finally, the court closes the estate, and all remaining fees and any remaining beneficiary payments are paid.

The process is straightforward, and the path is well-tread, but a minor hiccup along the road can delay probate significantly.

Technically, you don’t need a lawyer to go through probate. But, since the court can’t legally advise a representative on deadlines, paperwork filing, or anything else construed as legal advice, it is usually best to hire an attorney.

An attorney will help get all the estate’s ducks in a row while you’re mourning and reduce the emotional and time burden required for probate.

Executors and estate administrators work hard and should expect compensation.

As California Probate Code §10810 states,California law allows for a fee of 2-4% of the total estate if the will doesn't explicitly detail executor compensation. The full fee percentage depends on the estate size and goes down as estate value increases.

Be aware, though – even though you can expect compensation, being an executor is a stressful position that can also lead to personal liability. If the estate is mishandled, the court can reduce payment or even direct the executor to pay for damages.

When someone passes away without a will, they are known to have died intestate.

What happens to their estate goes down to California intestate law, and this is how it follows:

Asset Distribution according to California intestate law

Intestate law is a process for adjudicating estates without a will during the probate process.

In short, intestate law guides the court in identifying the sequence of surviving family members to get asset distribution from an estate if the will doesn’t provide for succession.

According to California intestate law, succession is generally what you’d expect. If no will exists, assets are distributed:

1. To the spouse, if there are no surviving children.
2. Equally among surviving children if there is no spouse.
3. If there is a spouse and children, community property is given to the spouse, and separate property is divided between the spouse and children. If there is a spouse and one child, each gets half. If there is more than one child, 1/3 goes to the spouse, and the remaining 2/3 is divided between the children.
4. Assets are distributed according to the closest biological relationship if there is no spouse or children.
5. If there are no family members, assets go to the state.

Any asset in the decedent’s name, like real estate or investment accounts, remains that way. While this might sound like an easy way to avoid probate, especially if you have access to the assets, you will still accrue liability and expenses like taxes.

This will also prevent paying the decedent’s remaining debts with the estate, so the debt load can also increase. The beneficiaries can also petition a grievance with the court, and you can be held liable for damages.

In short – even though it’s a hassle, probate is necessary to avoid even more trouble down the road.

To sum it up..

Losing a loved one is tough, the probate process can make the grieving process even harder. We created this guide to the California probate laws to help you understand this confusing process during a tough time.

If you are an executor or trustee of an estate in California, and you need help with probate - please don’t hesitate to reach out and contact us. We are always happy to help.