The probate process can be confusing. It is completely common to wonder: how do I probate a will? I find trained attorneys asking these same questions. The reality is, if you’ve never done it, you really do not know.
I would not describe myself as a “probate” lawyer. I am an estate planning lawyer helping clients avoid the probate process. This is to my own selfish benefit because I hate probate. It takes too long. It costs too much. And there are simpler ways to handle your estate. So, I really try hard to convince clients to plan a better way.
But every so often I get a client who failed to properly plan with a living trust, and I end up probating a will. Wills are super cheap to create, but as you will see, they can be expensive and time consuming to administrate after death. So, if you are new to the probate process, this post is for you. If you are dealing with an estate where there is no will or trust, you may be interested in our article regarding intestate succession. Click here to read: Intestate Succession: the Do Nothing Plan.
If you would like general estate planning information read: Estate Planning Explained.
PLEASE NOTE that this information is California specific. Please consult an attorney in your own state for accurate information.
Costs & Cost Waivers
Probate is expensive. For instance, there are significant court filing fees. Additionally, the statutory executor and attorney fees practically make it impossible to leave any real property to your loved ones. Consider the following graph:
Thus, on average, you can expect the probate fee to be around $22,000 for both the executor and attorney. But, both the executor and attorney are allowed to waive these fees, if they want.
In addition to statutory fees, you will have to pay significant filing fees. The filing fees are uniform for the entire State of California, with only three exceptions. Riverside, San Bernardino, and San Francisco counties all include a small additional fee to cover the cost of construction for new court buildings. You can find a complete list of all of the filing fees, HERE. To probate a Will, the main fees you will need to pay are:
- Filing fee for the original Will with probate court: $50
- Filing fee for the Petition for Probate: $435
- Filing Fee for the Petition for Final Distribution: $60
If you have financial difficulty, you may qualify for a fee waiver. Meaning, that you do not have to pay these filing fees. To obtain a fee waiver, you need to file a Request to Waive Court Fees. If you want more information about fee waivers, click HERE.
In addition to statutory fees and court fees, you will also need to pay the probate referee fees, which can vary depending on the size of the estate. But, expect to pay at least $500 for the probate referee.
How to Probate a Will: Step One
Once someone dies, the first thing you need to do is determine whether a formal probate is necessary. A formal probate is only necessary if there is at least one probate asset in the estate. A probate asset is an asset of a deceased person that does not automatically pass to someone else. For example, assets held in a revocable trust are not probate assets because they are not owned by the decedent personally — they are owned by the trust. Assets that have beneficiary designations, like life insurance, retirements accounts, or certain bank accounts are not probate assets because they pass automatically to the beneficiaries listed in the designation. Similarly, assets held in joint tenancy are not probate assets because when the person dies they pass automatically to the other joint tenant.
So, even if a deceased person has a will, it does not necessarily mean it must go through probate. But, once you are sure that the deceased person did not have a trust, did not own any joint tenancy assets, and the estate assets are not going to pass through a beneficiary designation, then a probate is necessary.
If a formal probate is necessary, then the first thing you need to do under Probate Code 8200 is file the decedent’s original Will with the local probate court. (Be sure to make copies of the original Will before filing it.) Unlike a Trust, the contents of a Will are always public information. A Will is publicly filed with the probate court (usually in the county where the person lived, or owned property). Although it is public information, it can be difficult to obtain.
Additionally, you must mail a copy of the Will to the named executor of the Will. (An “executor” is someone named in the Will who will be named the personal representative of the estate.) What happens if you do not know who the executor is, or if the executor died, or if you do not know the address for the executor? In that case, you can mail a copy of the Will to a beneficiary named in the Will.
Step Two: Gather Information
Probate courts require very specific information in a probate petition. Therefore, prior to filing a petition for probate, you must gather facts. You will need to have:
- A copy of the death certificate.
- The names, ages, and addresses for the executor (the personal representative), and all beneficiaries named in the Will.
- The relationship between the beneficiaries and the person who died, particularly if there is a surviving spouse. A surviving spouse has additional rights in California, so it is important to learn whether the decedent left a surviving spouse, and if so, provide that information to the court.
- The names, ages, and addresses for any persons disinherited by the Will.
- The names, ages, and addresses of immediate family members not named in the will. For example, an omitted spouse, or an omitted child.
- A copy of the executor’s driver’s license.
- A month (or two’s) worth of bills sent to the decedent’s home.
- Addresses and title information for all real property owned by the person who made the Will.
- Recent Bank Statements and financial documents. For example, 401(k), IRS, or Mutual Fund Statements.
- A general understanding of everything that the person who made the Will owned.
- An estimated value of all of the property as of the date of death.
- An understanding of all of the debts of the estate and who the creditors are.
Step Three: File Petition for Probate
The probate process begins by filing a petition. So, once you gather all the necessary information, you need to file a “Petition for Probate” to open a formal probate of the estate. A petition for probate is really a packet of documents, asking the probate court to establish the existence of the Will and appoint an executor.
FUN FACT: The word “probate” comes from the latin word probare, which means to “test.” We get our English word “probe” from this latin root. So a “probate” is really the court “testing” or “probing” to see if the alleged Will is valid.
In California, the probate courts provide the necessary documents. So, you do not need to reinvent the wheel.
The required documents for a petition for probate are indicated below.
- Petition for Probate. (Check to see if the Will waived a bond and grants authority under the Independent Administration of Estates Act. If it does, check the appropriate boxes.)
- Acknowledgment of Duties & Liabilities.
- The Confidential Supplement to the Duties & Liabilities. (This is to allow the Court access to information about the proposed executor, which remains private. For example, the proposed executor’s date of birth and driver’s license number.)
- A Proposed Order for Probate.
- Proposed Letters.
Where to file the Petition for Probate Documents?
Every county superior court has a probate court. Depending on how large the county is, the probate court may also have one or more probate divisions. The Probate Code requires that you file a Petition for Probate in any one of three possible courts. (Probate Code 7051-7052.)
First, you can file the petition in the probate court for the county in which the person who died lived. Second, if the person died in California but did not live in California, you can file the petition in the county in which he/she owned property. Third, if the person did not live or die in California, but owned property in California, you can file a petition in the County where the property is located.
Additionally, most courts require you to file a “certificate of assignment.” It is a document that verifies that the probate court in which you filed the petition, is the proper court or division. The local probate court typically has its own form for this.
Step Four: Post Filing Tasks
The probate court will typically set a hearing date 30-45 days from the day you file the petition for probate. But, do not passively wait for the court. You have several important tasks to complete prior to the hearing.
After you get the hearing date, fill out a Notice of Petition to Administer Estate. Send this notice, and a copy of the petition documents 1-5 (above) to everyone listed in the Petition for Probate. Be sure to fill out page two, the proof of service. All you need to do is have someone 18 years or older verify that they mailed the documents to everyone in the Petition for Probate. Once you mail the notice, file the notice with the probate court.
Next, you must publish the Notice of Petition to Administer Estate in a newspaper of general circulation in the city where the person died. Don’t worry, this is not as complicated as it sounds. Every newspaper knows about this. All you have to do is call and tell them you need to “Publish a Notice of Petition to Administer Estate” and send them a copy of the documents. YOU MUST DO THIS EARLY. The Probate Code requires that you publish the Notice AT LEAST 15-days before the hearing date.
Most probate courts have a list on their website of official newspapers that are acceptable. Below are links to a list of acceptable newspapers in Southern California.
Orange County, click HERE.
Riverside County, click HERE.
San Bernardino County, click HERE.
San Diego County, click HERE.
Step Five: Review and Clear Probate Notes
Finally, you need to check the court’s “probate notes.” Every probate court in California has a staff reviewing all of the petitions. These “probate examiners” review petitions and other filings for completeness and legality. They also verify if the notices filed in the case are proper and timely. They make recommendations to the judge about what to do in the case.
Importantly, they generate notes about the deficiencies in a probate petition or filing. Therefore, their opinion and notes are exceedingly important.
At least five court days (meaning don’t count weekends or holidays) before the hearing, read the probate notes and try to correct any errors five court days prior to the hearing. Why five court days? Because, it takes the court five business days to process your paperwork, get it to the correct department, and have the judge read it. If you do not file a document at least five court days prior to the probate hearing, the judge will know nothing about it.
If the probate examiner notices some kind of error in the documents you filed (or if you forgot to file a required document), then the probate notes will indicate that there is a problem.
You will need to correct the problem before the probate court can help you any further. The probate courts call this “clearing” the probate notes. If you have ever been to a hearing at a probate court and heard the judge say “you need to clear probate notes,” he or she is referring to correcting the errors identified in the probate notes.
Where to find the probate notes.
Each probate court posts the probate notes on their website. In some cases, you need the specific case number to view the probate notes. Below is a list of where to find the probate notes for Southern California.
Orange County probate notes, click HERE.
Los Angeles County probate notes, click HERE.
Riverside County probate notes, click HERE.
San Bernardino County probate notes, click HERE.
San Diego County probate notes, click HERE.
The court will NOT grant your Petition for Probate until you clear all of the probate notes.
For more information about probate notes see our article titled “Understanding Los Angeles County Probate Notes.”
Step 6: Obtain a Bond and Certified Copy of Letters
Attend the probate hearing and if all the probate notes have been cleared, the court will grant the petition. A soon as the court grants your petition for probate you need to obtain a copy of the final Order for Probate. You also need two or three (depending on how big the estate is) certified copies of the Letters Testamentary (which is the formal document identifying the personal representative of the estate).
If the court did not require a bond, then the court will issue the Letters Testamentary the same day it signs the Order for Probate. If the court did require a bond, you must obtain a bond and file it with the court, before the court will issue the Letters.
When is a probate bond required?
If the Will does not waive a bond, then the probate court will likely require the executor to obtain a bond. Typically, the amount of the bond should match the value of the estate. There are exceptions, but I will not get into them here.
So, if your petition for probate estimates that the estate is worth $500,000, the bond will need to be $500,000. In general, the only way to avoid a bond is if the Will waives the bond, or if the Will is silent as to where a bond is required, each beneficiary can file a Waiver of Bond.
The purpose of the bond is to protect the beneficiaries, creditors, and other interested persons from the intentional or negligent destruction of estate property by the executor. The court has the discretion to require a bond regardless of whether it is waived. Moreover, if the Will requires a bond, then even if the beneficiaries all waive the bond, the court will likely require one.
How to obtain a probate bond?
Unless you can actually deposit the amount of the bond, you will need to work with a bond company that issues probate bonds. (There are a bunch of them.) Google “probate bond company” and a number of possible choices appear. The bond company will review the Order for Probate and your credit history. It will then tell you what the annual premium for the bond will be. The annual premium is usually several thousand dollars.
Therefore, you must have good enough credit to qualify for a bond, and enough cash to pay the premium upfront. After you obtain the Letters you can be reimbursed from the estate.
I will not discuss the reimbursement procedure here, but the safest way is for you to file a Creditor’s Claim, and then file an Allowance of Creditor’s Claim. The topic of creditor’s claims is the subject of another article., but will be discussed briefly below
Step Seven: Give Required Post-Hearing Notices & Obtain Tax Help
After the court signs the Letters, you have 90-days to provide all of the required notices to various departments within the State of California. These notices generally advise the various departments that the person has died, and allows them to make a claim against the estate. For example, if the person who died received certain state benefits, the State can recover the value of these benefits.
Notice to the Franchise Tax Board
All estates will need to file a notice to the Franchise Tax Board (“FTB”). This notice tells the FTB that the person died, and allows the FTB to file a claim for any unpaid taxes. You will need to submit a copy of the death certificate and a copy of the Letters with the Notice. For more information about the FTB and where to send the Notice, click HERE.
Notice to the Department of Health Services
All estates will also need to send Notice to the Department of Health Services (“DHS”). Technically, under Section 9202 only those estates where the decedent or his or her spouse received Medi-Cal benefits need to give this notice. But, it is a good idea to give the notice anyway. The Notice allows the DHS to check to see if they can file a claim against the estate for any benefits paid to the deceased. The DHS has an online portal to file this notice, or you can print their PDF and mail it. For more information, click HERE.
Notice to the Victim’s Compensation Board
If any heir or beneficiary has ever been to prison or confined in any county or city jail, road camp, industrial farm, or another local correctional facility, then the executor must give notice to the Victim’s Compensation Board. This allows any victims to recover restitution from the inheritances of those who victimized them. You can learn more, HERE.
Other Public Agencies
If there is some other public agency the executor knows may have a claim against the estate, the executor should serve a notice on those agencies as well. A generic notice can be sent to:
Employment Development Department
Post Office Box 826880
Sacramento, CA 94280-0001
And
State Board of Equalization
Post Office Box 942879
Sacramento, CA 94279-0001
Effect of Giving Notice
Once notice is given, the agencies and departments typically have four months to notify the executor of a claim. If they do not notify the executor of a claim, then any claim is legally barred. Therefore, when in doubt, serve a notice to trigger the statute of limitations. Wait four months, and then you will know there are no claims.
Tax Issues
The deceased will need to file a final tax return. In addition, depending on how large the estate is, you may need to obtain an EIN and file an estate tax return. You should seek out a tax professional to help with the final returns and to properly advise you regarding the proper estate tax forms to file. You can obtain an EIN from the IRS by clicking, HERE. Act promptly, the IRS has deadlines that begin to run after someone has died, and if you fail to act quickly you may limit your tax options.
Step Eight: Inventory & Appraisal and Creditors’ Claims
Within four months from the date the probate court issues the Letters, you need to file a Final Inventory & Appraisal and you also need to give notice to all known creditors of the estate.
Inventory & Appraisal
There are three documents you will need to properly fill out the Inventory & Appraisal. First, you will need a copy of the Order for Probate. As soon as you get the order, look at the bottom of the order. There, you will see the person appointed by the probate court to act as the “probate referee.” The probate referee is in charge of appraising all non-cash assets of the estate. As soon as you get the order, you need to give the probate referee a copy of the Order.
Second, you will need to fill out the Inventory & Appraisal. Under the appraisals section, you only fill out the appraisal for cash assets (not investment accounts). For example, if the person died with only one bank account, then you will need to find out how much was in the account at the date the person died.
The bank can help you with this as soon as it receives a copy of the Letters. If the person died with $5,000 on the date of death, then you put $5,000 as the appraisal for the account. You will notice that it says that the representative fills out “Attachment 1″ and the Referee fills out Attachment 2, which is where all other, non-cash” assets of the decedent’s estate will be identified.
Finally, you will need to have the two Attachment Forms. There is only a generic Attachment form. So you need two copies of that form marked #1 and #2. On #1 you type in all of the cash accounts (like savings/checking accounts or money market accounts).
On #2 you write every other item of property. For example, houses, cars, clothing, furniture, art, investment accounts, retirement accounts, stocks, etc. Be as specific as you can. But do not fill in the appraisal of these assets, that is the probate referee’s job.
After you have filled out the Inventory & Appraisal and Attachments #1 & #2, send them all to the probate referee so that he or she can appraise the rest of the property.
Creditors’ Claims
After being appointed executor, you need to give notice to any and all known creditors of the estate so that the decedent’s debts can be paid. You can usually learn about any of the decedent’s debts by looking at the bills the decedent receives after death. Typical claimants are an electric company, gas company, mortgage company, cell phone provider, internet service provider, etc. Send all of the creditors the Notice to Creditors and a blank copy of the Creditors’ Claim form.
The creditors must file a claim within four months after the date the court issues the Letters or 60-days after receiving the Notice to Creditors, whichever is the latest. If you receive a creditors’ claim, you must file the claim (if it is not already filed) and then decide whether to allow the claim or reject it.
File the Allowance or Rejection of Creditors’ Claim form with the court as soon as you make your decision. If you reject a claim, then the creditor has 90-days to act by filing documents with the court. If you accept a claim, then you need to pay the claim from the assets of the estate.
Step Nine: Petition for Final Distribution
You can file a Petition for Final Distribution only after the time period for creditors’ claims and claims by the State are over. A Petition for Final Distribution generally contains four parts. First, a complete accounting of all the assets that remain or have been added to the estate.
Basically, you need to tell the court what happened to the assets listed in the Inventory & Appraisal. Second, a request to the court to approve the accounting.
Third, a complete report of the administration of the estate detailing what creditor’s claims you paid, which you rejected, the notices you sent, any responses you received, and any other actions you took to administer the estate.
Finally, it will include a section asking the court for permission to reimburse the executor for expenses, pay the executor or attorney the statutory fees, and approving of the proposed distribution of the estate (which is taken from the Will itself.)
Some courts, like those in Riverside County, have local forms you can fill out. Others do not.
Step Ten: Distribute the Property
After the court approves your petition for final distribution, you need to distribute the estate according to the Order for Distribution given by the probate court. In some cases, you will need to retitle assets before they can be distributed. For example, if you are ordered to distribute a home, then you need to file/record a new deed.
As you distribute each item of property, you will need to obtain receipts for each distribution. There is no form for this, it can be handwritten or formally typed out. But it should be signed and dated by the person receiving the distribution. For real property, you may also need to record new deeds.
Step Eleven: File Receipts and An Ex Parte Petition for Discharge
After you make all the distributions and file the receipts with the court, you can file an Ex Parte Petition for Discharge. This is the document requesting to be relieved of any further fiduciary obligation to the beneficiaries. It is also the document that formally closes the probate proceeding.
As you can see, probate can be a muddled and complex beast. Having an advocate by your side the work with you through this complex process is essential. There are many excellent probate attorneys in Southern California, Regnum Legacy helps families plan for the inevitable and guides children and heirs through the difficult probate process. If you would like a free consultation please do not hesitate to call (951) 228-9979.
