Anyone with interest in the estate can start the probate proceeding by filing a petition and supporting documentation as required, with the Clerk of the Superior Court. The Petition is filed in the county where the decedent resided at the time of death, no matter where he or she died or left property. The person requesting to be appointed the estate representative usually files the probate petition. That person is called the petitioner until the court formally appoints them as personal representative of the estate.

The person who represents the probate estate is called the estate representative (executor or administrator). If there is a will which names an executor, that person is usually the estate representative. On the other hand, if there is no will (the decedent died intestate), the heirs can select amongst themselves who they want to represent the estate. In this manner, the personal representative, once approved, is called an “administrator.” Sometimes there is a Will, but no executor is named or the person named is not able to serve. In this case, the personal representative is called an “administrator with will annexed.” The term “personal representative” is often used interchangeably for executor or administrator.

Unfortunately, the probate process is not inexpensive in California. Fortunately, several small estate probate proceedings may be an alternative to settle an estate, and these alternative procedures are reasonably cheap. On the other hand, full probate can cost several thousand dollars in fees and costs, even when you do it yourself.

Filing probate with the help of an experienced probate legal document assistant is, by far, the cheapest way to complete California probate. Attorneys can charge statutory attorney fees based on the gross value of the estate.  Remember, these fees do not take into consideration debt nor correlate with the estate’s net worth. We suggest you use our probate calculator to see what the statutory attorney fees would be for your estate. You may be surprised at the amount you will save when you use ProbatebyME/A People’s Choice to help you with the probate proceedings.

Depending on the type of California probate you file, there could be other third-party costs associated with filing your probate proceeding. Remember, these costs are in addition to document preparation service fees or attorney fees should you hire a professional to help you.

When filing full probate, you can typically expect an additional $1,000 to $2,000 in court costs and other required fees. Common third-party costs in a typical full California probate include:

1. Court filing fee to file initial Petition: This fee is currently $435.00 for most courts. Some courts also charge an extra $30 court reporter fee. Riverside, San Bernardino, and San Francisco counties have slightly higher filing fees.
2. The fee to lodge original Will – Most courts charge$50 to deposit the original Will.
3. Newspaper publication – Full probates require advertisement in a newspaper to notice the filing of the Petition. This fee varies, depending on which paper is proper for publication.  To avoid problems with this critical process, A People’s Choice requires all publications to be facilitated by Pfanstiel Newspaper Service Bureau, a company that facilitates publication services in all California Counties. Pfanstiel will typeset the notice and coordinate the publication with the proper paper. The average fee for publication is $250, however, with smaller newspapers, the cost can run as high as $600-$700.
4. Certified copy of Letters – In full probate, the Court Clerk will issue a certified copy of Letters. The fee is approximately $25 per certified copy. It is recommended to get 2-3 certified copies of the issued Letters. The court does not grant Letters in small estate proceedings.
5. Probate Referee – The probate referee is assigned by the court to value the assets of the estate. The probate referee is allowed to charge statutory fees of 1/10th of 1% (.001) of the gross value of all assets they appraise. In addition, they can charge nominal fees for mileage and copies. A probate referee is required for full probate as well as all small estate proceedings, but not for a spousal property petition.
6. The filing fee for Petition for Final Distribution – In full probate, this fee is the same as for the initial Probate Petition, currently $435.00 for most courts. As with the original Petition, most courts also charge an additional $30.00 court reporter fee. The counties of Riverside, San Bernardino, and San Francisco charge slightly higher fees.
7. Certified copy of Order – Approximately $25
8. Recording Fee – Approximately $30-$50.

Assuming there are no unforeseen complications, a typical California probate proceeding can be finished in 8-12 months. Most courts schedule the first hearing in probate six to ten weeks after the filing of the probate petition. This allows sufficient time to complete the required newspaper publication. At the hearing, the judge will sign the Order of Probate, and the Court Clerk can issue Letters. Once the Clerk issues Letters of Administration or Letters of Testamentary, there is a mandatory four-month creditor claim waiting period. This means that the Petition for Final Distribution cannot be filed until after the waiting period expires.  During this waiting period, the court will assign a probate referee who will complete the Inventory and Appraisal. During this time, the personal representative must provide notice to creditors, pay or reject claims and resolve all tax issues. Although unusual, a will contest or filing of an objection to the initial Petition may delay the probate proceeding for even more extended periods. Refer to this article which details the steps for filing probate in more specific detail.

Most personal representatives can easily complete full probate within 8-12 months, and we conclude 90% of the probate cases we handle within this timeframe! Although there is no statutory deadline within which a probate matter must close, the court does set deadlines that will cause a Personal Representative other headaches and court appearances should a probate case take longer than normal. In this regard, it is essential that a client follows our detailed instructions and regularly communicates with us to make sure the case is proceeding in a timely fashion. With this in mind, it is necessary to point out that occasionally some probate cases extend beyond 12 months. This is usually as a direct result of inactions by the client, such as:

1. failing to respond to communications
2. failing to follow directions
3. failing to provide information
4. failing to attend hearing
5. failing to provide copies of Letters or Probate Order

Extended probate cases generate more work for our staff. In this regard, probates that extend beyond 12 months will incur an additional annual fee of $500 to cover the added staff time to manage the case.

Letters are issued by the Court Clerk after a Judge signs the Order for Probate. More particularly, Letters constitute the representative’s “proof of authority” as official estate representative in a probate proceeding.

There are different types of Letters. The Court Clerk will issue “Letters Testamentary” to the estate representative if the decedent had a will. On the other hand, the Clerk will issue Letters of Administration if the decedent did not have a will. Letters are issued by the Court Clerk and function as the representative’s “Driver’s License” in a probate proceeding. The personal representative can present the Letters to banks and other entities that demand court proof that the representative has court authority to act on behalf of the decedent and their estate.

Letters are issued to the estate representative after the first hearing. It is the responsibility of the estate representative to go to the Court Clerk’s office after the Order for Probate has been signed by the Judge (and filed) to get several certified copies of the issued Letters. The representative will be required to provide a certified copy of the Letters to banks and other entities to substantiate their authority as estate representative and administrator.

Anyone that has been appointed estate representative is entitled to compensation for services. This compensation is called “commissions” which are paid out of the estate assets. The personal representative may request or waive the commissions on the Petition for Final Distribution. The gross value of the probate estate determines the amount of commission the personal representative may receive. As a side note, this commission is the same fee as the statutory fees an attorney would charge for their services.

If the personal representative is the sole beneficiary, it is common for commissions to be waived since the personal representative will receive all of the estate anyway. However, if there are several beneficiaries and a personal representative has spent countless hours administering an estate, it is important for the personal representative to discuss this issue with the other beneficiaries if they intend to claim commissions. If a personal representative receives commissions, the tax law treats them as taxable income, and the representative must report them on their personal income tax return.

In our cases, the majority of personal representatives waive the statutory commissions. In cases where there will not be a waiver of commissions by the personal representative, additional fees will be due to cover the extra paperwork required.

The percentage of cases approved at the first probate hearing may be lower than you think.  In fact, only about 20% of all probate filings by attorneys get accepted at the first hearing. Thanks to our attention to accuracy and detail, ProbatebyME/APeople’s Choice is proud to have a much higher percentage record than many attorneys!  In most cases our probate filings are “pre-approved” even before the hearing takes place. In this regard, if your case is one of the lucky ones and all goes well, the Order for Probate will be signed after the hearing. At that point, the Court Clerk can issue the Letters. “Letters” is the document that confirms the authority of the personal representative and triggers the earliest date we can file the Petition for Final Distribution. Once the court issues Letters, the personal representative can manage the assets of the estate and perform their other duties.

If the probate case is not “pre-approved,” the probate examiner has probably identified deficiencies or supplemental information they feel is required to approve the Petition. Sometimes it is possible to correct defects or provide the requested supplement information before the hearing. If not, however, the court will continue the matter to a future date to allow the personal representative additional time to file a supplement. It is important to note that this is quite common, and a Petitioner should not be alarmed when this happens in their case. It is critical, however, to be precise about what deficiencies or other information the court is requesting. Don’t be alarmed if you cannot read the probate notes – they are often prepared using brief annotations that our staff is familiar with and understands. You should forward probate notes to the person assisting you with your probate paperwork, as soon as possible, assuming you are representing yourself in the case.

Ideally, if the court approves the Petition, the Petitioner should be able to get a conformed and file-stamped copy of the Order for Probate and Letters immediately after the hearing. Keep in mind; however, Letters are only issued in full probate. The court does not grant Letters in spousal property proceedings or small estate proceedings.

The Order for Probate and Letters are essential documents, and every effort should be made to get them as soon as possible. It is recommended to get 2-3 certified copies of the Letters, as well as a regular file-stamped copy of the Order. Some courts, however, no longer issue the Order for Probate at the hearing. Instead, they mail a copy of the Order several days after the conclusion of the hearing. This revised process causes some delay because it prevents the personal representative from getting certified copies of the Letters when they are at the hearing. Remember, the Court Clerk cannot issue Letters until the judge signs the Order for Probate. As a result, a personal representative may have to return to the court after they receive the filed Order for Probate in the mail to pay for and order the necessary certified copies of the Letters from the Court Clerk.

The executor or estate’s representative has a fiduciary duty to administer the decedent’s estate properly. This process includes locating assets owned by the decedent, inventorying those assets, managing the assets to prevent losses, paying the estate’s bills, filing tax returns, finding heirs and beneficiaries, and other duties. In other words, the personal representative is responsible for closing up the decedent’s financial affairs and distributing remaining assets to the beneficiaries.

Some of the duties of the executor or personal representative include:

1. Taking possession of all property of the estate. Keep in mind, joint tenancy property, life insurance proceeds and retirement plan benefits (unless payable to the estate) are not property under the jurisdiction of the probate court;
2. Collecting all interest and dividend income (and other income), setting up an interest-earning estate bank account, and depositing all cash assets in the estate account (or accounts) as received until the estate is closed;
3. Keeping all receipts and accounting for all disbursements made by the estate. This list should include the date, source, and amount of all cash and checks received; as well as the date, nature of payment, and amount of any disbursements made by the estate;
4. Filing all tax returns and paying all taxes. Most estates do not require filing an estate return; however, the personal representative may need to submit the final individual tax return for the decedent. It is essential to consult with a tax specialist in this regard; and
5. Keeping estate property insured. You should consult with an insurance specialist in this regard.

The issuance of Letters starts the clock ticking as to when the probate can close. More particularly, after Letters are issued in a California probate, a four-month waiting period begins. This waiting period is to allow creditors to file claims. In other words, the estate cannot close, nor property distributed, until this period passes. During this time, the personal representative should close and transfer all bank accounts in the decedent’s name to estate accounts in the name of the personal representative. Furthermore, the personal representative should deposit all money they receive during the probate process into the estate checking account. In addition, the representative should pay all expenses of administration such as court costs and publication fees from the new estate account. Keep in mind, the personal representative should NOT disribute any estate assets to the heirs or beneficiaries without court approval. In conclusion, the representative is responsible for keeping detailed records of all income received and expenses paid.

In probate, the personal representative has a fiduciary duty to protect the assets of the estate. In this regard, a probate bond is an insurance policy for the heirs and beneficiaries of the estate should the personal representative breach their fiduciary duties while handing the decedent’s estate during probate.

In most situations, the amount of the bond correlates with the estate’s value.  For example, per Probate Code § 8482(a)(1)-(3), the court has authority, in its discretion, to fix the amount of the bond, but the amount of the bond shall not exceed the total of:

1. The estimated value of the personal property.
2. The probable annual gross income of the estate.
3. If the court grants independent administration as to real property, the estimated value of the decedent’s interest in the real property.”

However, a bond is not required in the following situations:

• All beneficiaries in writing waive bond, and the will did not require a bond, or there is no will. Probate Code §8481(a)(2).
• The will waives bond. Prob Code §8481(a)(1). Keep in mind, a court may require bond even though the Will waives the requirement of bond if:
  • for good cause, on its own motion or petition by an interested person Probate Code §8481(b) and
  • if the proposed representative resides outside California or for other good cause. Cal Rules of Court 7.201(b).
• A trust company is appointed the executor. Probate Code §§83, 301(a).

There is one situation where the court will not waive bond, even if all beneficiaries have waived the bond requirement. If a personal representative lives outside of California, most judges will require they obtain a bond, even all heirs and beneficiaries have signed a bond waiver. In this regard, if there is a choice or option as to who represents the estate, it is always best to pick someone who lives in California.

Most personal representatives will need to open an estate bank account after filing the probate. The personal representative can transfer and close monies in the decedent’s savings and checking accounts, and deposit these funds into the estate’s account. The bank requires a certified copy of the Letters issued by the court to open an estate bank account. These Letters of authority are given to the personal representative after the hearing when the court grants the Order for Probate.

The personal representative should deposit all uncashed checks and cash in possession of the decedent at the time of his death, and subsequent receipts of monies, into the estate checking account. The personal representative should pay all estate creditors by check from the estate account. Keep in mind, the personal representatives should never commingle their own funds with estate funds. The personal representative should not keep substantial amounts of estate funds in the estate checking account for long periods of time. Instead, the personal representative should keep funds not required for current expenditures and distributions in an interest-bearing estate savings account.

The personal representative is responsible for approving, paying and/or rejecting creditor claims. In particular, anyone who settles a deceased person’s affairs is accountable for the payment of all legitimate debts. Creditor claims are received two ways – formally and informally.

Formal Notification: The probate process requires publication of the Notice of Petition to Administer Estate published in a newspaper. This publication is to provide official, legal notice to the decedent’s creditors, allowing them time to file claims. A creditor should file a formal Claim within four months after the Court issues Letters to the personal representative. In some situations, however, a creditor may file a claim after the four-month period has expired if they can show notice was not correctly given. For a claim to be considered, the creditor must file their claim with the court and serve a copy of the claim on the personal representative. The claim will be invalid if this isn’t done.  Also, the personal representative must give written notice within four months after issuance of Letters to all known or reasonably ascertainable creditors. During the period of the probate proceedings, the personal representative must continue to give notice as he or she becomes aware of new creditors.

Informal Notification: Informal claims are bills that come to the decedent’s last address. Probate Code §10552 allows the personal representative to pay these bills at their discretion without court approval or without the creditor filing a formal claim if the court granted independent administration authority. In addition, if there has been a written demand for payment, Probate Code §9154 allows the personal representative to pay decedent’s debts within 30 days after the claim period ends without requiring a formal claim unless for some reason the amount or legitimacy of the debt is in dispute.

Probates require an accounting. To close an estate, the court requires the filing of a Petition for Final Distribution. The accounting is attached to the Petition for final distribution and details all monies and other items received, and all funds paid out, by the Personal Representative during the probate administration. As you can imagine, this is a very tedious task. The accounting, however, can be waived by having all people entitled to receive property from the estate sign a written waiver of accounting. Preparing an accounting is time-consuming, expensive and unnecessary when all the beneficiaries are agreeable. As you can see, the waiver of accounting dramatically simplifies the closing of the estate.

ProbatebyME requires that all beneficiaries and heirs sign a waiver of accounting in probate cases we administer.

The personal representative can request distribution and closure of the estate any time after the creditor’s claim period expires (four months from the date Letters are issued). Keep in mind, this is only an option after the representative pays all debts and taxes, or they are sufficiently secured, and no other problems exist to prevent the estate from being closed. When the estate is ready to close, the personal representative must file a Petition for Final Distribution. If the court approves the Petition, the estate’s assets can be distributed to the heirs and beneficiaries, Receipts are signed and filed, and the Court will release the personal administrator from their duties.

When a court restricts the authority of a personal representative with only limited authority, the personal representative will be unable to do the following without court involvement:

1. Sell estate real property
2. Exchange estate real property
3. Grant an option to purchase estate real property
4. Borrow money by using estate real property as collateral

Aside from these limitations, the personal representative will still be able to take all other actions that are allowed under the rules of the IAEA. Court supervision is required over the administration of the estate.

On the other hand, when the court has granted a personal representative “Full Authority,” the personal representative will be able to take any action that is permitted under the IAEA. This includes selling, exchanging, and borrowing against real property owned by the estate. It also includes the ability to grant an option to purchase real property. These type of actions can be taken at the personal representative’s discretion, without the need for court supervision.