Probate is the court procedure that transfers the legal ownership
of people's property after they die. The department in superior
court that handles probate matters often is called probate court.
The probate judge supervises the assets and liabilities of people
who die while they are residents of California or who leave property
inside the state. This includes payment of the dead person's debts
and the distribution of property to beneficiaries.
The person who handles the estate under the terms of the will is the executor named in the will. If a will does not exist, or the will does not name an executor, the court will appoint an administrator to manage and distribute the assets.
A dead person's estate will not be handled in probate court if there is a surviving spouse and the estate consists entirely of community property, or the dead person's property is held in joint tenancy with another person. Property transferred by gift before death, or placed into certain types of "living trusts," also is not subject to probate.
OVERVIEW OF THE STEPS INVOLVED
Within 30 days after a person dies, the person who has the
decedent's will must file it with the superior court of the county
in which the decedent lived. The probate judge makes sure it is the
decedent's last will, appoints the executor named in the will (or
appoints an administrator), and supervises the executor's work.
The probate court issues "Letters Testamentary" or "Letters of Administration" naming the executor or administrator. During the administration of the estate, certified copies of these letters may be needed by banks, title companies, tax authorities, and others.
The law requires publication of a Notice of Petition to Administer Estate. This is a Notice to all creditors to file their claims against the estate. Creditors usually have four months to file their claims.
Probate court oversees the distribution of the estate under the terms of the will. If no will exists, state laws determine who gets the dead person's estate. The court will direct distribution of the estate according to those laws.
PATIENCE IS REQUIRED
Probate matters tend to move along slowly. Many detailed steps
are required to ensure that all creditors are paid, all property is
identified, all taxes are paid, and title to each asset is properly
Typically, it takes four to six weeks after the decedent's death to appoint an executor or administrator. Even in the most routine probates, the law requires a minimum four-month wait after the Notice to creditors has been issued before any action can be taken to distribute or close the estate. And if an estate requires the preparation and filing of a federal estate tax return (IRS Form 706), the process can be expected to take longer. The financial circumstances of each decedent vary widely, so some estates may require much more court involvement than others.
WHERE TO GET MORE INFORMATION
Helpful pamphlets that explain how to write a will and how to do estate planning usually are available free from our Self Help Center. You may also wish to consult with an attorney, especially when multiple heirs or varied types of assets are involved.