The procedure for uncontested probate in California is the topic of this blog post which will discuss some of the procedures and issues for an uncontested probate in California. Uncontested means that there are no disputes between any of the heirs or beneficiaries regarding either the will, if there is one, or the distribution of the estate property, also that there are no disputes with creditors.
The word probate refers to what happens to a person's property when he or she dies. The purpose of probate is to see that the debts and taxes of the person who has died known as the decedent are paid and that the remaining property gets to the rightful owners.
Assets held in the decedent's name alone are referred to as probate property and will generally require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate proceeding is called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It takes a minimum of 6 to 9 months to complete a formal probate court proceeding.
If the decedent died testate, meaning that there is a will then a petition for probate of will and letters testamentary must be filed. If the decedent died intestate, meaning that there is no valid will then the petition is called a petition for probate and letters of administration. If the named executor is unable or unwilling to serve and no alternate executor is named in the will the Court will appoint what is known as an administrator with will annexed.
Once the petition for probate has been filed, a notice of petition to administer estate must be published in a legal or "adjudicated" newspaper that publishes probate notices. The notice must be published three times and the first publication must commence at least fifteen days before the hearing on the petition for probate. Also all of the beneficiaries and other persons mentioned in the will must be mailed notice of the petition to administer estate at least fifteen days before the hearing.
In most uncontested cases either the will waives bond, or the heirs sign a waiver of bond. Most courts will waive the bond if everyone has signed a waiver, particularly if only limited authority under the Independent Administration of Estates Act is requested. Limited authority means that the executor or administrator may not sell any real property, or encumber any real property without obtaining court permission, and any sale of real property must be confirmed by the Court and a special notice published. If full authority is requested, most Courts will require a bond.
Full authority means that the executor or administrator does not have to obtain Court permission to sell any real property or encumber any real property. Instead they must serve all heirs, beneficiaries and other persons entitled to notice with a Notice of Proposed Action describing in detail what they plan to do, the notice must be served at least fifteen days before the proposed action. If anyone objects then the Court will hold a hearing on their objection.
At the hearing on the petition for probate, if no objections have been received the Court will appoint the executor or administrator, and also appoint a probate referee to appraise certain estate property such as automobiles, real estate, and other types of property which do not have a readily ascertainable cash value such as stocks, bonds, etc. Cash in the bank is appraised by the executor or administrator. The Inventory and Appraisement must be filed with the Court once all of the estate property has been properly appraised.
Notice to creditors must also be given. Even if no creditors exist a notice must be served on the California Franchise Tax Board. Any creditors given notice have until the later of sixty days after the notice was served, or four months after the letters were issued to file a creditor’s claim. The executor or administrator must approve the claim in whole or in part, or reject the claim. If a creditor’s claim is rejected then the executor or administrator must wait three months once the notice of rejection was served before a petition for final distribution can be filed.
Once all creditor’s claims have been dealt with, and after at least four months since the letters have been issued, then a petition for final distribution may be filed.
The petition for final distribution will generally request that the Court approve all actions taken by the executor or administrator, and must provide a complete accounting of the estate unless all heirs or beneficiaries have waived the accounting. The petition must also list the current value of all estate property, and all heirs or beneficiaries entitled to property of the estate, as well as what percentage they will receive. Also if the executor or administrator is requesting their statutory fee, or the fee for the attorney, a detailed breakdown of how the proposed fee is calculated must be included in the petition.
If the Court approves the petition for final distribution then an Order will be signed by the Judge. Then once all heirs and beneficiaries have signed a receipt stating that they have received all property to which they were entitled, the receipts are filed with the Court along with an Ex-Parte Petition for Final Discharge which requests that the Court discharge the executor or administrator. Once that is done the probate is over, if a bond was issued than the bonding company will cancel the bond once they have received a copy of the Order of Final Discharge.
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
