PROBATE ESTATE LITIGATION

What are the stages of probate?

There are four basic stages of probate. Each step in the process is detailed in the sections below. 

Stage One — Petition and Notices

Probate begins when a petition to open probate is filed with the Superior Court in the county where the deceased person resided. Once the petition has been received, the court will set a hearing date. All interested persons (the personal representative, heirs, beneficiaries named in the will, and creditors) will receive notice of the date and time of the hearing. 

Stage Two — The First Hearing

At the first hearing, the court will appoint the estate’s personal representative, unless their appointment is contested. If the deceased person left a will that identified a specific person as their executor, the court must approve and finalize the appointment. If the court does not approve or if the individual does not want to serve as the executor, the court may need to appoint someone else. Once a personal representative is accepted, the court will issue Letters Testamentary, which is a legal document that allows the executor to access estate assets and otherwise administer the estate.

Stage Three — Estate Administration 

After the personal representative receives Letters Testamentary, they are responsible for collecting all of the deceased personal assets that are subject to probate. The executor will then be required to submit an inventory of the estate property to the court. 

Once the assets have been inventoried, the personal representative must provide notice of the death to all of the deceased’s creditors. Creditors with outstanding debts can submit claims and receive payment from the inventoried assets. Under California law, creditors must submit claims within four months of the executor’s appointment.

The personal representative must also ensure that state and federal estate taxes are paid before distributing any assets to heirs. 

Stage Four — Final Distribution

After the personal representative has completed all of their responsibilities, they will file a Petition for Final Distribution with the court, which will require a later hearing to be held. At this hearing, the personal representative will provide a detailed accounting regarding the use of estate assets. The judge will review this information to ensure all of the legal requirements were met. Once the judge determines that the estate has been appropriately administered, they will sign the Petition for Final Distribution and close the estate.

Is probate good or bad?

Probate is neither good nor bad, but there are situations where avoiding probate may be beneficial.

Probate can be an expensive time-suck. The proceedings are also part of the public record, including your will. To avoid the costs and time associated with probate and protect their privacy, some people develop estate plans that allow their assets to pass to their loved ones without going through the probate process.

Some common methods for avoiding probate include:

1. Creating and funding a living trust that distributes your assets to your beneficiaries upon your death.
2. Establishing “payable on death” (POD) bank accounts and “transfer on death” (TOD) bonds, stocks, and brokerage accounts. 
3. Jointly owning property so it will automatically pass to the co-owner when you die.
4. Designating beneficiaries on life insurance and retirement accounts.

You may also be able to bypass the formal probate process when the estate assets qualify for a small estate administration. However, there are some situations where formal probate proceedings can be beneficial, so you should always consult with a probate lawyer to determine the best course of action.