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Probate

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Probate is the handling of an estate when someone, such as a family member or other loved one, passes. Probate ensures that any outstanding creditors are paid and that assets are properly distributed to heirs and descendants.

The legal process begins with a “petition” (request) to open the estate and formally name a personal representative who is responsible for the administration of the deceased’s property. An Official Notice of Creditors is printed in a local newspaper and a Notice of Administration is sent to other involved parties. Creditors then have a set amount of time to file their claims based on the date of first publication. The personal representative then pays the debt and distributes the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.

This is a very simple overview of a complex legal process and you should engage the services of a skilled attorney. Upon your attorney’s recommendation, you may also be encouraged to consult with a CPA or tax consultant.

Probate – First 3 Months

  • File original wills and codicils (executor must petition for probate within 30 days or may lose right to be executor)
  • Publish Notice of Petition to Administer Estate (3 times before hearing date, 1st publishing must be at least 15 days prior to hearing)
  • Mail Notice of Petition to Administer Estate (at least 15 days prior to hearing)
  • File proof of publication and proof of mailing “Notice of Petition to Administer Estate”
  • File proof of will, if required and check calendar notes at least two days before hearing
  • File Order for Probate and if required probate bond

Letters of Administration issued – may be at the same time, or after filing order for probate

Next 4 – 5 Months

  • Apply for Employer Identification Number
  • Notify Director of Health Services
  • Open Estate Bank account
  • Arrange for preparation of income tax returns
  • Prepare inventory & appraisals and send to Referee
  • Mail Notice of Administration to creditors, pay debts without requiring formal claims
  • File approval or Rejection of formal Creditor’s Claims
  • File Inventory and Appraisals with court
  • List property for sale with Realtor® and begin to market and sell property
  • File petition for Confirmation of Property Sale, if no IAEA (Independent Administration of Estates Act) Administrator
  • Attend court hearing for overbids when if no IAEA Administrator
  • File change in Ownership Statement with county assessor for all real property
  • File federal estate tax return if gross estate is valued at $675,000 or more

Final Month – Closing Estate

  • File Petition for Final Distribution
  • Mail Notice of Hearing to heirs and beneficiaries
  • File proof of mailing Notice of Hearing
  • File Order for Final Distribution
  • Transfer assets and obtain receipt
  • File Receipts and Affidavit for Final Discharge

Intestate Succession

The following is an attempt to simplify the manner in which separate property is distributed when one dies without a will.

      If there is a surviving spouse, but no surviving children, parents, brothers or sisters:

      • All to surviving spouse

If there is a surviving spouse, and one surviving child:

      • 1/2 to surviving spouse
      • 1/2 to child

If there is a surviving spouse and more than one surviving child:

      • 1/3 to surviving spouse
      • 2/3 to children

If there is not a surviving spouse and no children, but there are parent(s):

      • All to parents

If there is not a surviving spouse, no children, and no parents:

      • All to siblings

If there is not a surviving spouse, the preferential order of distribution:

    • Children
    • Parents
    • Parent’s children
    • Grandparents
    • Children of grandparents
    • Children of predeceased spouse
    • Next of kin
    • Parents of predeceased spouse
    • Children of parents of predeceased spouse
    • State of California

Overbids

Some probate sales require court confirmation of the sale. At the time of the confirmation hearing, another buyer may overbid the original buyer. Typically overbids are offered at the hearing verbally. At the consummation of the confirmation hearing, the successful over-bidder will be required to execute the bid in writing and usually at this time, the buyer must present a 10% deposit.

There is a statutory formula for the first overbid. It is an additional amount equal to 10% or more, on the first $10,000 and 5% on the amount of the original bid in excess of $10,000.

For example:

Original bid = $100,000
First overbid must be 10% of 10,000 = + 1,000
5% of $90,000 = + 4,500

Overbid must be = $105,500

If the court receives an acceptable overbid, the court will ask for any additional overbids. The judge will usually establish minimum increments as to additional overbids. All overbids will be taken into account based on the gross amount (without taking into account any brokerage fees).

The above is a simplification of a very complex procedure; only an attorney can provide legal advice.More detailed information may be found in Sections 6400-6413 of the California Probate Code.

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