California Probate F.A.Q.s
The probate process in California can be somewhat complicated. In addition, California offers many different processes to administer a probate estate, and with each of these processes there are many steps. It is important for our clients to have a place to go for basic California Probate FAQs as well as a place they can find answers to commonly asked questions not only about the probate process, but also our services. Our California Probate FAQs page is divided by topic into sections to make it easier to find answers to your questions. If you have a question that is not addressed here but you feel would be beneficial to include on our California Probate FAQs page, please email us at firstname.lastname@example.org. We regularly add new FAQs and if we use your suggestion on our website, we will email you a discount coupon for $25 towards any service we offer.
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Visit our parent site for an informative article on How to File Probate in Calaveras County.
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Visit our parent site for an informative article on How to File Probate in Contra Costa County.
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Visit our parent site for an informative article on How to File Probate in El Dorado County.
Probate links for El Dorado County:
Completing a California probate, without professional help, can be quite an undertaking. Often people have a difficult time just “understanding” the process, let alone completing all of the required paperwork the process requires. Full probate takes, on average, 7-10 months to complete. This means 7-10 months of document preparation and case management. That is quite an undertaking for a layperson without professional help.
But what about the court’s self- help center? Well, if you have ever had to go to the local court’s self-help service, you probably can answer this question yourself. Most courts in California are understaffed and short-handed. This results in long lines at the self-help centers, requiring consumers seeking help to arrive early and wait hours before the doors open if they want to get in and be helped. By using the services of ProbatebyME/A People’s Choice Inc., you will never have to wait in line and in many situations, will not have to take time off work to deal with your legal document preparation needs. You can imagine how many trips you might have to make over a 7-12 month probate process! ProbatebyME/A People’s Choice Inc. provides services for all 58 California counties. Our services incorporate convenient, online interviews that our clients can quickly complete without having to take time off work.
Keep in mind, the Court’s self-help center does NOT prepare paperwork. They offer limited direction regarding document preparation, and you must prepare the documents yourself! When you use the services of ProbatebyME/A People’s Choice Inc., your probate documents will be fully prepared and completed – only missing signatures. As a courtesy, in most situations we file your documents with the court, schedule required hearings and manage the case until it is finished. We partner with our clients through every step, making it easy and stress-free for our clients.
ProbatebyME/A People’s Choice Inc. has been in the legal document preparation business for over 37 years. During this time we have helped thousands of customers just like you file and successfully complete California probate. Unlike many other companies who hide in internet obscurity, we provide our toll-free and local telephone numbers as well as our address on our website. We are not attorneys, and we do not offer legal advice; however, we do provide exceptionally high-quality probate help and legal document preparation services unsurpassed by any other company on the internet, and we take pride in our long-term reputation.
Our goal is to keep our fees low, without sacrificing service. With California probate, the statutory fees attorneys can charge are outrageous and often do not match the quantity of services provided. Our probate calculator will tell you exactly how much you will save as compared to hiring an attorney.
We encourage you to price shop; however, keep in mind that price is not everything. Although we are confident you will not find lower prices for similar probate services, we want you to understand that ProbatebyME/A People’s Choice Inc. does not “just prepare legal documents.” There are many steps to California probate, whether you are filing a small estate affidavit, spousal property proceeding or full probate. First and foremost, we provide “complete” services including client interview, preparation of the necessary legal documents, case monitoring and being available to answer procedural questions during your proceeding. We also facilitate the processing and/or filing of your documents with the court or other proper entity. We will make sure your hearing is scheduled and adequately noticed. We will let you know what steps we are taking as we proceed through the process and what future actions will be needed. Remember, court proceedings are not the same in every county. Furthermore, the standardized judicial council forms are insufficient in 99% of probate cases! We often hear from potential customers how they have downloaded the required court forms, failing to realize that those forms will not be sufficient to approve their probate or complete their case. Sadly, months later we often hear from these same people who have made a mess of probate and now need help to fix things. Remember, fixing things always costs more!
Call around. See what other services offer. Ask questions. Verify exactly what services you will be getting before you contract with any California probate service so that you won’t be unpleasantly surprised later down the road. We have thousands of satisfied customers. Please read our positive reviews posted through the Better Business Bureau, Yelp, Google+, Facebook, Superpages.com and more!
We understand that you will give thoughtful consideration when selecting a company to help you with your document preparation. By choosing ProbatebyME/A People’s Choice Inc., we are confident that you won’t be disappointed! Feel free to call us at our toll-free number at 800-747-2780 if you have any further questions or would like to chat to learn more about our services and our company.
ProbatebyME is the probate division of A People’s Choice Inc., a California registered legal document assistant. Unfortunately, many online services do not comply with state law requiring registration and bonding, the process required by California law to be able to offer legal document assistant services in California. If you work with an unregistered, unbonded company, remember that these companies are not legally recognized services under California state law. As a result, you are offered no protection as a consumer when things go wrong!
ProbatebyME is a dba of A People’s Choice Inc., our parent company that is registered and bonded. As required by California law, this information is disclosed on our site. A People’s Choice is also a member of CALDA (the California Association of Legal Document Assistants); Sandy McCarthy, founder of ProbatebyMe/A People’s Choice Inc. is honored to have served as CALDA’s President from 2004-2005. CALDA is the ONLY association in California that demands high standards of excellence from its Registered Legal Document Assistant members. A People’s Choice is also a member of the Tri-County Better Business Bureau and has been granted its prestigious A+ rating.
When you choose ProbatebyMe/A People’s Choice Inc. to handle your California probate, you can rest assured your probate case will be monitored by experienced staff with whom you can communicate during the entire period of your case. Most of our probate fees are flat fees which allow unlimited communication by email at no extra charge. Probate requires a “partnership,” sometimes extending 8-10 months during the process. Having a positive working relationship with every client is essential! We want to provide you with the tools to navigate through the legal system as painlessly as possible, and we are there to help you along the way.
ProbatebyMe/A People’s Choice Inc. is NOT an attorney’s office. Our staff cannot give you legal advice and, as a result, we may not be able to answer some of your questions. If this happens, please do not get angry with us. We strictly adhere to the laws governing our profession. Please keep that in mind when you ask us questions that we cannot answer. We can, however, offer other solutions for our customers to get answers to legal issues. Some of these solutions include our extensive self-help law library in our corporate office, informational booklets, blog articles and other information offered through our parent company’s online library. Our staff can also refer you to an attorney in your area who may be able to help get answers to your questions.
No one likes unexpected, surprise legal fees. For this reason, all services performed by ProbatebyME/APeople’s Choice Inc. are flat fees for document preparation services. Documents covered under the fee quoted are identified in our Contract For Services. Documents outside of those listed are not covered by our flat fee.
Our flat fees always include unlimited email communication. In this regard, customers can usually expect a quick response, even after hours and on the weekends. With this in mind, however, our staff do have families and, although we make every effort to respond after hours, we do not “guarantee” a specific after-hours email response time. Unsolicited phone calls by customers to the office will be tallied and assessed an extra fee on a “per minute” basis. This allows each customer complete control over their overall legal fees and level of service they need. Our goal is to keep our fees at “rock bottom” prices for those extremely price-conscious consumers; while maintaining flexibility and convenience for those customers who want to pay for a higher level of service.
We have been in the legal document preparation business for over 37 years. During this time, our goal has been to provide a high-quality professional service at the lowest cost possible. As you know, time is money, and we discovered that some clients were abusing our “flat fee” policy which previously offered clients unlimited calls to our office during their case. In fact, sometimes, a client would call 5-10 times a day asking “just one more question.” The abuses were not by all, but their effect on staff time made it difficult to get work done and resulted in a backlog.
After thoughtful consideration, it came down to two options:
1) Raise everyone’s fees and hire extra staff just to cover the phone demand or
2) Keep the prices the same, set up policies to allow unlimited communication by email and have clients who need to call pay for those extra services.
In the end, we felt having people pay for the added convenience of calling was the best resolution so that everyone was not penalized for the actions of a few. Keep in mind, if staff calls a client to get information, an added charge will not apply. Extra fees only apply to inbound calls from a client (unless we specifically have asked a client to call us.)
We understand, however, that some clients may want that extra hand-holding or to be able to talk on the phone when they want, for how long they want. For those clients who want the flexibility to call in, they can pay for this extra service on an “as needed” basis.
Email is, however, the preferred mode of communication. What we have discovered is that communicating by email also allows us and the client to keep a record of what was said. This is very important when dealing with legal issues. It’s a win-win for everyone and enables us to keep our fees low while giving flexibility to others who need it.
ProbatebyME has many procedures in place to keep clients informed about what our office is doing. What does this mean?
- First, we always email clients an acknowledgment when our office receives postal communications.
- Second, we attempt to notify clients by email whenever we take action on your file. For example, when we send documents to the court for filing, we will send you an email indicating this.
What this does NOT mean:
ProbatebyME is not responsible for client inaction. Keep in mind, ProbatebyME uses email to communicate with all of our clients. This means it is a client’s responsibility to check their email for communications from our office regularly. Our office maintains notes on every client’s matter. These notes enable all staff to efficiently work on every case.
As part of our procedures, we identify all actions and communications in the client notes. In this regard, when we contact a client for information or with a question, it is the client’s responsibility to respond to our communication. Receiving the client’s response triggers the next step our office takes. Therefore, if we do not receive a response from the client, the file will stay in “pending” mode. ProbatebyME does not “calendar” follow-ups to check if a client has responded to an information request. Therefore, if a client has not heard from our office and thinks they may have missed or overlooked a communication from us, they should email the office.
Please mail all documents and other correspondence to our corporate office in Ventura. The address is:
A People’s Choice Inc.
5755 Valentine Rd. #303
Ventura, CA 93003
We typically acknowledge receipt of all communications by sending a generic email upon receipt of letters, packages, and other documents.
As a courtesy, our office facilities the filing of all documents prepared by our office to make sure they are timely filed and duly accepted by the court. Our Court Filing Authorization is an online form we provide clients so they can choose how they want their documents submitted or processed, There are several different levels of filing service:
Court filings by EFiling (if available). Most courts are converting to mandatory E-filing; however, E-filing is NOT available in all counties. If E-filing is not available, ProbatebyME/A People’s Choice Inc. will process documents by Priority Mail. With E-Filing, our staff uploads documents through an e-filing portal for fast processing. The service provider charges a fee for this service (based on the number of pages). E-Filings are typically processed same or next day by the court. Although a rare occurrence, any E-filing service for unusually large documents that require more than 15 minutes to compile/scan will incur an additional surcharge based on the amount of time expended at the rate of $80/hr. (no charge for the first 15 min.)
Court filings by mail. Our office will mail your documents Priority Mail with tracking to the court or other agency for processing. The fee for postage is charged to your account as incurred.
Court filings by Filing Service. ProbatebyME/A People’s Choice Inc. provides in-person filing for Ventura County cases only. All documents are submitted in person to the court at the court clerk counter by our filing service. Documents are presented by our court runner at the Court Clerk’s counter under “standard processing” which means the court will return the documents typically within 1-4 court days.
Client will file their documents: Clients always have the option to submit court documents themselves. ProbatebyME/A People’s Choice will copy and prepare the package. The client will incur postage costs to send the “ready to file”packets to the client. The client will then be responsible for dealing with the court clerk directly to file their paperwork. We only recommend this option in emergency situations.
When someone files probate without an attorney, they are, in essence, acting as their own attorney. In this regard, as a self-represented individual, clients that use our services are ultimately responsible for their case. This does not, however, mean that we leave you on your own.
First, neither ProbatebyME, the probate division of A People’s Choice Inc. nor A People’s Choice Inc. is an attorney’s office. In this regard, we do not process or manage cases in the same way as an attorney would. If you are expecting “attorney-like” service or need excessive attention and hand-holding in your legal matter, it is unrealistic to think you will get that at non-attorney prices. If this is the case, you should probably hire an attorney and pay the high statutory fees to help you with the probate case. On the other hand, if you only need professional legal document help, and are willing to take responsibility for your case with a little professional guidance and direction, then using our services is an excellent choice and will save you a substantial amount of money.
As a client, it is your responsibility to promptly respond to all communications from us. More importantly, it is critical that you cooperate with us, as necessary, until your file is closed. As one client recently commented, in order this process to be successful, you must recognize that we establish a type of “partnership” that requires equal effort from both sides. For example, if we email you and we do not hear from you, your file may be put “on hold” until you respond. For this reason, it is essential to regularly check your email and/or voice messages while we are handling your probate document preparation.
As a Registered Legal Document Assistant, California law limits our contractual obligation to preparing legal documents. Remember, as a self-represented person, all communication, if any, from the court, will be directed to you, not to our office. Therefore, if you receive a letter, phone call or other documents from the court, we may not be aware of what they sent you. Always check with us to make sure we are aware of what has transpired.
Our long-standing policy has been to help with the processing and/or filing of any legal paperwork we have prepared. Many courts are changing over to e-filing which eliminates the previously long wait times for documents to be filed and returned. In some situations, however, we may ask the client to assist in the court filing of prepared papers if there is an upcoming filing deadline or other unique situation.
In most cases, the answer is NO! California has several different ways to settle an estate, depending on the type of assets and the gross value of the estate. Most people can settle an estate and navigate through the California probate process on their own with the help of ProbatebyME/APeople’s Choice Inc. for the paperwork and procedural guidance. On the other hand, if someone contests the probate, you may want to consider your exact needs before rushing out and hiring a lawyer. For example, our office has often helped people address objections filed by family members, and most clients find they can easily handle these types of proceedings without the need of an attorney. The judge will decide on the objection, and the probate process usually allows people enough leeway to have time to hire an attorney if a client feels a Judge is siding against them.
Keep in mind, nowadays people can hire an attorney under a limited scope of representation agreement. When you hire a limited scope attorney, you get more bang for your dollar by being able to use ProbatebyME/A People’s Choice for all needed document preparation and hire the attorney for complex court hearings. Contact our office to discuss your needs. We can explain how other clients have handled similar situations using our services so you can make the best choice for yourself.
Every estate does not require Probate. In order to determine your options, we encourage you to watch the video below.
California Probate Code Section 8200(a) requires the Executor to file the original Will with the court in the county of residence of the person who has died. The personal representative should submit the original Will within 30 days after the person’s death. Unfortunately, Executors rarely fulfill this statutory requirement. In fact, in most cases, the Executor only lodges the original Will with the court when they file some type of probate case, such as a full or small estate probate proceeding.
If you know the decedent had a Will, you may want to contact the Court Clerk in the county where the decedent lived to see if the personal representative lodged it with the court. If the Executor has not submitted the original Will and you have a dispute, you may want contact an attorney to determine what your options are.
California offers several procedures to settle a decedent’s estate. Alternatives to filing full probate are available if:
- The gross value of the decedent’s personal property does not exceed $150,000. In this case, a non-court affidavit procedure will allow the transfer of personal property assets to the beneficiaries and avoid probate.
- The gross value of decedent’s real property (and personal) property is $50,000 or less. In this case, a simplified court affidavit procedure can be used on behalf of the beneficiaries to avoid “full” probate.
- The surviving spouse or registered domestic partner of the decedent may file a special spousal property petition to avoid formal probate. This method is faster and less expensive than formal probate. Keep in mind, this process only administers the marital interest in the estate and not an estate interest of another heir or beneficiary of the decedent.
- Property that is held by the decedent with another person in joint tenancy with right of survivorship can be transferred to the surviving joint tenant by recording an affidavit.
An exemplified copy of a Will is a copy of a previously filed Will obtained from the clerk of the courthouse where the Will was originally filed. The Court clerk confirms the Will’s authenticity by signing the copy and attaching a formal seal or stamp. Sometimes the document includes a Judge’s signature or an attached certificate from the judge, to confirm the clerk’s authority to verify the Will’s authenticity. In ancillary probate proceedings when the original Will has been filed in another court already, the ancillary probate case will need an exemplified copy of the will to be filed in the court file since the original will has already been filed in another court. To get an exemplified copy of a Will, contact the court clerk where the original Will was submitted. You will need to pay a small fee for the exemplified Will. Do not remove any special seals, ribbons or other certification materials used by the Court clerk and attached to the exemplified copy, as this will make it invalid and unacceptable to the ancillary court.
If an estate has a gross value of over $150,000 but consists only of personal property (assets comprised of cash, stocks, and tangible personal items), the estate will not require probate. However, all estates that have real property in California will need some type of probate, unless the property is held in joint tenancy by a surviving tenant.
Estates with real property worth less than $50,000 can be administered through a small estate probate proceeding. The process is quick and easy and does not even require a hearing.
On the other hand, estates with real property worth more than $50,000 but less than $150,000 can be administered with another type of small estate proceeding. In that case, a hearing is required, but these matters can typically be completed within 2-3 months.
Spousal property proceedings are similar to small estate proceedings but can only be used by the spouse of a decedent. Furthermore, a spousal proceeding just settles the spousal’s interest in the property and not the interest of any other beneficiary. The good news is that a person can complete these alternative proceedings much faster and less expensive than the full probate process.
Lastly, full probate is required for larger estates with personal and/or real property values that exceed $150,000. Keep in mind that these values are gross estate values and do not take into account any debts that are owed on the property.
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:
- 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.
- The fee to lodge original Will – Most courts charge$50 to deposit the original Will.
- 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.
- 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.
- 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.
- 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.
- Certified copy of Order – Approximately $25
- Recording Fee – Approximately $30-$50.
Court Call is a third-party service that allows a party in a court case to appear at their hearing by the phone. Keep in mind, however, that appearing through Court Call is not an option in every county nor with every type of legal proceedings. You should check with the court to make sure that appearing a Court Call appearance in your case will be permissible. To arrange an appearance via Court Call, visit their website their website to see if your case is being heard at a participating court. Next, register your account and let the court know that you intend to appear at your hearing using Court Call. Court Call is often a convenient way to appear at routine probate hearings, when allowed.
Many courts are converting to efiling. Unfortunately, even if we can efile your paperwork with the court, it does not eliminate the need for our office to have original, signed documents returned to us. Please make sure you MAIL all original, signed documents to our corporate office. In some instances, we may be able to sart the processing with an electronic version of signed documents, but this is not the case in all circumstances. Either way, our office will always require original signed documents to be returned to us if we are processing them with the court or other agency.
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.
If you have already finalized your online interview, there is no way to re-access it and change your submitted answers. Please email the office at email@example.com with whatever changes or corrections you need to make to your interview answers so we can make sure your paperwork reflects this updated information. This should be done as soon as possible.
In California, when someone dies without a will or trust, their estate will be distributed according to California intestate succession laws. This means that the decedent’s estate may go to someone they did not intend. Generally speaking, California intestate succession laws state that a person’s estate will be distributed in the following order (if the decedent had no will):
|Status of Decedent
||Who is Entitled to Decedent’s Estate|
|Decedent is not married but has children||Decedent’s children inherit everything equally. If any child has died before the decedent, that deceased child’s share shall be distributed “by right of representation” to their heirs (children)|
|Decedent is not married, has no children and has no brothers or sisters||Decedent’s parents will inherit everything. If decedent’s parents have predeceased decedent, the estate will be distributed to the decedent’s grandparents|
|Decedent is not married, has no children, decedent’s parents have predeceased decedent, but decedent has living brothers and sisters||Decedent’s brothers and sisters will inherit everything|
|Decedent is married (has a spouse) but decedent has no children, decedent’s parents have predeceased decedent, and decedent has no brothers or sisters (or they are deceased)||Decedent’s spouse will inherit everything|
|Decedent is married (has a spouse) and decedent has children||Community Property:
Decedent’s spouse will inherit all community property.
|Decedent is married (has a spouse), decedent has no children, and decedent’s parents are living.||Decedent’s spouse inherits all community property and 1/2 of all separate property
Decedent’s parents inherit 1/2 of all separate property
|Decedent is married (has a spouse), decedent has no children, decedent’s parents are deceased, but decedent has living brothers and sisters.||Decedent’s spouse inherits all community property and 1/2 of all separate property
Decedents brothers and sisters inherit 1/2 of all separate property
California courts require the documents to be printed single-sided on 8 1/2″ x 11″ white paper. Do not print documents “double-sided” nor use colored ink. Make sure all pages print properly before returning the documents to our office.
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:
- failing to respond to communications
- failing to follow directions
- failing to provide information
- failing to attend hearing
- 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.
Please make sure you typing in the password we emailed you. Do not cut-and-paste the password from our email as sometimes there may be an extra character either before or after the password that you inadvertently copy that triggers an invalid password response.
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.
|4% of the first||$100,000|
|3% of the next||$100,000|
|2% of the next||$800,000|
|1% of the next||$9,000,000|
|½% of the next||$15,000,000|
|“reasonable amount” for everything above||$25,000,000|
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 Inc. 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 proceeding 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.
Clients often ask us “what should I bring to my probate hearing.” In probate cases, there are typically one or two court hearings where a decision is made and a final Order made by the court. The court order is based on the outcome of the hearing. In this regard, if we can lodge the Court Order with the court before the hearing, we will do so. Unfortunately, however, not all courts allow orders to be lodged (put in file before the hearing). Therefore, as a client, you should print and take a copy of the proposed Order and have it available to give to the Judge after the hearing. Keep in mind, however, that some courts will not process the order “on the spot.” Therefore, we suggest you also take a self-addressed, stamped envelope for the court to use to send the filed order back to you if they do not process it at the hearing.
At the first hearing (in full probate cases) if the court approves your Petition, you will also need the Court Clerk to issue “Letters” showing that you have been approved as personal representative. Remember, Letters are ONLY issued in full probate cases, not small estate matters or spousal proceedings. As with the Order, you should take a duplicate original, signed copy of the Letters along with a self-addressed envelope to give the court for to return the document to you if the Letters have not been pre-lodged with the court.
Remember, you should always keep our office informed if you receive any paperwork from the court. If the court later mails you the issued Letters or filed Order, or any other communications, you should send a copy to our office by email.
In most cases, a certified copy of final court orders will be required. Therefore, if the court does process the Order at the hearing, you should go to the Court Clerk’s Office and get a certified copy of the Order as well. In the case of final distribution orders, the Court Order will need to be recorded in the county recorder’s office where the property is located.
In larger, busier counties, a probate examiner examines all probate petitions after filing and before the scheduled hearing to see if it the documents are complete and conform to specific local and state requirements. The probate examiner will make Notes and notations about their findings usually several days before the hearing. Often you can view these probate notes through the court’s website.
Often the notes will indicate that additional information is required or corrections should be made, In this regard, the personal representative can prepare and file a supplement to the petition which addresses the notes and provides the additional information. With sufficient time, this can often be done before the hearing. Keep in mind, it is quite common for the probate notes to reflect deficiencies or request additional information. As a result, the filing of a Supplement to the Petition is quite routine. With adequate time to address the probate notes before the scheduled hearing, the personal representative can avoid the court continuing the hearing and the matter can proceed as normal.
It is important to note that only about 20% of all probate cases filed by attorneys are approved on the first hearing. ProbatebyME/A People’s Choice Inc. is proud to have a substantially higher percentage of approval of our probate petitions at the first hearing. At last count, it was about 75%. Although some probate notes are out of our control, we believe our high percentage of court pre-approval on Petitions we prepare is due to our detailed review procedures that help to foresee and circumvent issues the probate referee may bring up.
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:
- 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;
- 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;
- 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;
- 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
- Keeping estate property insured. You should consult with an insurance specialist in this regard.
Unfortunately, having a Will does not avoid the probate process. If the decedent had a living trust and their assets were in a trust, the estate can avoid probate and be settled through simple estate administration proceedings. Having a will merely allows the distribution of the estate according to the decedent’s wishes, rather than the laws of intestate succession. Having a will does not avoid the probate process.
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.
A probate asset is property that is in the name of the decedent. The property could be in the name of the decedent alone or could be an asset co-owned with another person (not in joint tenancy). Holdings with pay-on-death provisions are not probate assets. For example, if the decedent owned an asset in joint tenancy with someone else, or if the asset has a named beneficiary designated to receive the asset after the death of the owner, these assets are not part of the probate estate. This is different than an asset that is owned in tenancy in common. Property titled in tenancy in common with another person does not transfer to the co-owner. Each owner’s interest is separate. On the other hand, when a person sets up a pay-on-death designation, the asset can also avoid probate. However, if the value of all other assets in California exceeds $150,000, the estate must be probated. Keep in mind, a surviving spouse may be able to avoid filing full probate with a spousal property petition.
The role of a “probate referee” is to value certain assets in the estate. In this regard, the referee will value the assets as of the date of the decedent’s death. Keep in mind, not all probate matters require a probate referee. For example, if an estate only consists of “cash,” there is no need for a probate referee to value anything. On the other hand, if there are stocks, bonds, real property, household furniture, jewelry and the like, the personal representative will need to have a probate referee value these types of assets.
In small estate proceedings, our office will select the probate referee to value the estate assets. In small estate proceedings the Inventory and Appraisal must be completed and attached to the Petition when the case is filed with the court.
On the other hand, in full probate, after the judge signs the Order for Probate, the court will appoint the probate referee. In this regard, the estate representative is responsible for preparing the initial inventory of the assets for the referee to appraise. The “Inventory and Appraisal” form with Attachments 1 and 2 will describe, in detail, the assets owned by the decedent. Once completed, the Inventory form is sent to the probate referee who will value the non-cash assets listed Attachment 2. The referee will enter the values on the inventory schedule and return it to the personal representative for filing with the probate court. Although rare, sometimes it is possible to have the court waive appraisal by a probate referee. Keep in mind, as mentioned above, even in large estates, if there are no assets listed on Attachment 2, a probate referee will not be required.
California law sets probate referee’s fees. The referee is entitled to receive compensation equal to 1/10th of 1 percent of the value of the property they appraise. There is a minimum fee of $75 for small estates and a maximum fee of $10,000 for extraordinarily large estates. In addition, the probate referee can also charge for incidental expenses such as photocopying and mileage.
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:
- The estimated value of the personal property.
- The probable annual gross income of the estate.
- 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:
- 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.
Unless a guardian has been appointed for the minor’s estate, usually the court will not allow a minor to actively receive inherited property. There are, however, some exceptions:
- if the amount to be distributed is small,
- the decedent’s will names a custodian to secure the minor’s property or
- the child has a court-appointed guardian.
There is an exception if the minor does not have an appointed guardian, and the decedent did not nominate someone to receive the minor’s property. If the total estate of the minor (what the minor already owns plus what they are inheriting) does not exceed $5,000, the personal representative can deliver the money or other personal property being inherited by the minor to the minor’s parent. The parent can hold the property in trust for the minor until they reach age 18.
On the other hand, if the minor does not have a guardian of their estate and the decedent did not nominate a custodian, and the property to be transferred is less than $10,000, the personal representative may, under certain conditions, appoint another adult as custodian. This is only an option if:
- The personal representative believes the transfer is in the minor’s best interest
- The will does not prohibit the transfer or contain a clause that would contradict the transfer.
If money is distributed to a minor, the court will usually order the money deposited in a bank account, subject to court supervision.
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 people hold property as joint tenants, it is not necessary to file probate to transfer title in that property if one of the parties dies. If someone owns property as a joint tenant with right of survivorship with another party, the surviving owner is automatically entitled to the property when the co-owner dies. An interested party can transfer the Decedent’s ownership to the surviving co-owner by merely recording an affidavit confirming the death of the co-owner.
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:
- Sell estate real property
- Exchange estate real property
- Grant an option to purchase estate real property
- 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.
If the estate consists of only personal property valued under $150,000, a non-court affidavit can be prepared to transfer these assets.
However, if the estate has real property (and personal property) that have a combined total less than $150,000, California allows the beneficiaries to petition the court to distribute the real and personal property assets using a more straightforward and streamlined process outside of a full probate proceeding. The process is relatively straightforward and consists of formal Inventory and Appraisal, the filing of a petition, notification to interested parties, and a court hearing. It is essential to understand that, to use this process, there must be at least 40 days passed since the decedent died. All beneficiaries must be cooperating and must sign the Petition. This simple court proceeding can typically be completed within 3-4 months.
For estates with real property of low value, there is a simple court proceeding that allows the settling of the estate and transfer of real (and personal) property. This small estate process can be completed without a court hearing. An affidavit under this process may not be filed until six months after the decedent’s death. In addition, no probate proceedings may be pending or have been previously conducted in California for the estate.
To petition the court, all beneficiaries must be cooperating and will have to sign all documents. Before the Petition is filed, an approved probate referee must complete a formal Inventory and Appraisal. This Inventory and Appraisal later becomes part of the filed petition. Once the Inventory is completed, the finished petition and all required attachments are submitted to the Court Clerk. Upon review and approval of the documentation, the Court Clerk will approve the Petition and issue a certified copy of the Order. This certified copy must be filed with the recorder’s office where the real property is located to complete the transfer.
The first step of a spousal property petition is to prepare and file the Spousal Petition. After the petition is filed, the court clerk will set a hearing date. There is no publication required, but the Petitioner must mail notification to all interested parties such as the executor or administrator of the deceased’s estate, and any other beneficiaries. Due to the straightforward nature of the petition, there is usually only one hearing required. At the hearing, the Judge will issue an order detailing the court’s findings on the property involved. The process can be completed in 2-3 months.
There are only a few people who can file a spousal property petition. These are:
- The surviving spouse;
- The surviving domestic partner; and
- Representatives of the spouse/partner.
The filing of a California probate spousal property petition is voluntary and can only transfer property to a surviving spouse. It does not transfer property of the decedent to which other rightful heirs are entitled. A surviving spouse/partner can choose not to file a spousal property petition, and file a full probate proceeding instead.
A probate referee is not required when filing a California spousal property petition. Furthermore, there is no minimum or maximum gross estate value to file a spousal property petition. Given that this type of process does not take into consideration the value of the decedent’s assets, the spouse/petitioner does not need to submit an Inventory and Appraisal.
The small estate affidavit is a non-court process that allows the transfer of personal property under $150,000 to beneficiaries without filing a court proceeding. If the estate has real property, you cannot use this process.
To use a Small Estate Affidavit, at least 40 days must have elapsed since the death of the decedent. The recipients entitled to the property can sign an affidavit and present it to the bank or other institution having custody or control of the property, and request the ownership be transferred to them. Several assets may be included in one affidavit, or a separate affidavit may be used for each. When using this affidavit procedure to collect or transfer personal property, no administration proceedings may be pending or conducted for the decedent’s estate in California.