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Contents Probate is a court-supervised process to accomplish the transfer of property from a deceased individual (the "decedent") to either (1) the decedent's beneficiaries as identified in the decedent's will, or (2) to the decedent's heirs if the decedent died without a will. How is the probate process conducted? The following is a basic overview of the probate process: a. Petition for Probate: Initially, a petition for probate is brought in the probate court, usually by the individual who has been appointed as executor in the decedent's will. A hearing on the petition for probate is conducted within 20-30 days of the petition. All beneficiaries named in the will, as well as the decedent's immediate heirs, must be notified of the hearing. Also, notice of the hearing must be published in the newspaper. At the hearing, the judge may hear any objections to the appointment of the executor. If an individual wishes to contest the validity of the will, he or she may notify the court of this fact at the hearing. b. Inventory and Appraisal: Once the petition for probate has been granted, the executor must begin to gather together (or "inventory") all information related to the assets and debts of the decedent. All assets of the estate that do not have a readily ascertainable market value - such as real estate, small businesses, jewelry, artwork, and the like - must be appraised by a court-appointed probate referee. Then the executor must must file an Inventory and Appraisal with the Probate Court identifying all assets of the estate and their value. c. Creditor Claims: All known creditors of the estate (i.e., individuals or entities to whom the decedent owed money during his or her lifetime) need to be notified of the pending probate proceedings within four months of the petition for probate. The creditors may then make claims against the estate for any debts. At that point, the executor must decide whether to accept or reject those claims. A creditor whose claim was rejected may then decide to sue the estate regarding the claim. d. Management of Estate: Since the executor is responsible for paying all expenses incurred during the administration of the estate, he or she will usually set up an estate checking account to handle such expenses. When the liquid assets of the estate are insufficient to pay estate expenses, creditor's claims, or gifts to beneficiaries, the executor may need to sell estate property to raise funds. In some cases, court approval of such sales may be required before the sale can be finalized. e. Transfer of Non-Trust Assets: If the decedent owned any assets such as jointly-held property, retirement plans or Totten trust accounts, title to the above assets may need to be changed. If the decedent owned an IRA, it may be advisable to look into the possibility of rolling over the IRA or other distribution options. Also, it is necessary to apply for any life insurance benefits owned by the decedent. f. Tax Issues: If the decedent died owning property in excess of the federal estate tax exemption amount, then a federal and state estate tax return must be filed within nine months of the decedent's date of death. Also, the executor is responsible for filing the decedent's final income tax return for the last year of the decedent's life. The executor must also file income tax returns for any income generated by the estate during probate. There may also be property tax documents that need to be filed with the county assessor if the decedent died owning real property. g. Accounting and Final Distribution: When the estate is in a condition to be closed, the executor must prepare an accounting and submit it to the court for approval. The beneficiaries and heirs have an opportunity to review this accounting and render any objections to it at a court hearing. The accounting discloses all income generated by the estate and all estate expenses paid by the executor. The executor will ask for approval of any sales of estate property, and any other actions that he or she took on behalf of the estate. Assuming that the executor's accounting is accepted by the probate court, then he or she will be directed to distribute the estate to the beneficiaries set forth in the decedent's will (or to the decedent's heirs if the decedent died without a will). Upon completing these transfers, the executor will be discharged from his or her duties as executor. How are attorney & executor fees determined in a probate proceeding? The fees for an executor and attorney of the estate are the same. The fee is determined by the value of the estate, based upon the following formula set forth in the California Probate Code:
What alternatives are there to a formal probate proceeding? There are several alternatives to a formal probate proceeding. For example, an informal probate procedure may be utilized if the decedent's assets do not consist of real estate and are valued at less than $100,000 in the aggregate. Also, in many cases where a decedent is survived by a spouse, the decedent's property can be transferred to the spouse without a formal probate proceeding. In some cases, the manner in which title to an asset is held may cause probate of that asset to be unnecessary. The following assets may be disposed of without the need for a formal probate proceeding: a. Joint tenancy assets; However, since there are many implications to avoiding probate (such as the effect of creditor claims against the decedent's estate), it is important to first obtain competent legal advice before informally administering an estate. |
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