Probate is the court-supervised process developed under California law that transfers legal title of property from the estate of a person who has died to beneficiaries. At the beginning of probate, a petition is filed with the court. After notice is given, and a hearing is held, the will is admitted to probate and an executor is appointed. If a person dies without a will, their estate is still subject to probate and the court may appointed a person to handle the estate known as the “administrator.”
Click here for filing fees.
If you are getting public benefits, are a low-income person, or do not have enough income to pay for your household’s basic needs and your court fees, you may ask the court to waive all or part of your court fees. To ask for a fee waiver:
You may be ordered to go to court to answer questions about your ability to pay court fees and costs and to provide proof of eiligibility.
You will receive an Order on Court Fees Waiver (form FW-003) telling you if your request was granted (approved) or denied. The Order will explain how to proceed. Act quickly - you only have 10 days from the date the Order is mailed to you to comply with the order or exercise your options if your request was denied.
Even if your fees are waived at first, you may have to pay them back later:
The court can collect fees and costs due to the court. If waived fees and costs are ordered paid to the trial court, the court can start collection proceedings.
A will is something in writing from the person that states the person’s wishes regarding their property after death.
All the property that a person owned at the time of their death.
If the person who died did not have any property to transfer, probate may not be necessary. Usually the deceased person’s relatives open a probate if they feel necessary however a probate may be opened by any interested person.
No, “probate estate” refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person’s “non-probate estate.”
California has “simplified procedures” for transferring property for estates under a certain amount depending on the kind of property.
No. When a living trust holds title to some of the decedent’s property, that property also passes to the beneficiaries without needing to go through probate.
California law states the personal representative must complete probate within one year from the date of appointment, unless they file a federal estate tax. In this case, there is 18 months to complete probate.
If probate has not been completed by that time, the representative must file a status report with the court stating as to why the probate can not be closed and how much more time it will take.
If the representative does not report to the court, another beneficiary can ask the court to order the representative to file an accounting or take other actions to close the probate process. The court can remove the representative and appoint someone else.
Probate hearings are heard in the Probate Department of the Superior Court in the county where the decedent lived at the time of death. The Probate Department for Orange County is located in the Lamoreaux Justice Center in Orange, California.
If you must file a probate petition in another state because there is real property in that state, the courts in that state may use a different name for probate court.
If there is a Will, the executor is usually appointed as the personal representative. The personal representative is responsible for managing the estate and abiding by the probate rules and procedures.
The executor does not have the authority to act as the personal representative until they are appointed by the court and the Court Clerk issues formal letters if appointment.
If no will exists or the will does not name an executor, the probate court appoints an administrator to handle the process. The Court usually chooses the closest living relative, or someone who will inherit a portion of the decedent’s assets.
Any person may petition the court to be appointed as the personal representative however the petitioner is usually a relative or other person named in the will.
The following cannot be a personal representative:
No, however there are certain transactions the personal representative cannot make without the Court’s permission.
No. You may choose not to serve as executor and decline to act then the Court will appoint another person.
Yes. The executor usually earns a statutory fee which comes out of the probate estate. The Court must approve all fees and expenses.
The court may lower or deny compensation and may replace the current personal representative.
No, but you may want a lawyer so you are able to meet all the deadlines and avoid mistakes.
Sometimes a lawyer can help avoid disagreements among family members over any major issues.
The person may appear at the court hearing and state their objection or they may file a written objection with the Court.
If a person dies without a Will, the probate court appoints a personal representative to be appointed as administrator.
If there is no Will the probate court will distribute the estate according to the state laws that determine who is entitled to estate property under the rules of inheritance.
Check with the Probate Court in the county where the decedent lived.
If there was a will filed, see if it is available for public viewing.
If the decedent owned real property in another state, that state’s laws regulate how the property will be distributed.
There will be probate in each state where there is real property, in addition to the home state. Every state has its own law for distributing the decedent’s real property.
You must notify the creditors of the decedent’s death. Creditors must file a claim with the court for the amounts due within a specific time frame. If the executor approves the claim, the executor will pay the bill out of the estate. If the claim is rejected, the creditor may sue for payment.
Steps when in the process to probate an estate:
A trust is when one person (trustee) holds title to property for the benefit of another person.
A trustee is the person who holds the legal title to the property that is in the trust.
The law states the trustee must:
A trust usually ends only when the trust document says it will end. Trusts usually end when the settler dies or when one of the beneficiaries dies. Sometimes a trust ends after a certain period of time or after a certain event takes place, like when a beneficiary gets married or reaches a certain age.
Listed below are some other reasons a trust can end:
If the trust ends, the trustee will continue to act as trustee until s/he finishes up the trust.
No. When a living trust holds title to some of the decedent’s property, that property also passes to the beneficiaries without going through probate.