Understanding the California Probate Process

​Probate is the court process of settling someone's estate after the death of that person.  It's not always necessary.  Just because someone died and they had a few assets doesn't automatically mean their estate will need to go through the probate process.  The first step is to inventory all assets.  If there is a joint owner on an asset, it goes to the surviving owner.  If there is a beneficiary on an asset, it goes to that beneficiary.  If the asset is in the name of a trust, the trust will govern the distribution of that asset.  Generally, probate is only necessary for assets in the decedent's name alone that do not pass by any other means.  Also, in California there is a threshold amount of such assets before you even have to bother going to court.  In other words, don't assume probate is automatically necessary.

In California, the probate process can be frustrating, complicated, and time-consuming.  It's important to understand the steps involved and the costs and fees associated with the process.

Step 1: Filing the Petition for Probate

The first step in the California probate process is to file a petition for probate in the court in the county where the deceased person lived. The petition must be filed by the executor named in the deceased person's will or by an interested party if there is no will.  The California probate Code outlines a list of individuals who may petition the court for probate (assuming no one has been nominated in a will).   In short, a "petition" is a request of the court to appoint someone as the executor of the estate - someone who will be in charge of distributing the decedent's assets. 

The petition must include information about the deceased person's assets, liabilities, debts, and beneficiaries. The probate filing fee varies by county but typically ranges about $500.

Step 2: Appointment of Executor or Administrator

Once the petition is filed, the court will schedule a hearing date to appoint an executor or administrator for the estate. The executor is usually named by the decedent in the will, but if there is no will, the court will appoint an administrator. The executor or administrator is responsible for managing the decedent's assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries. The executor or administrator must often post a bond, which is a type of insurance policy that ensures the estate will be properly managed. The cost of the bond varies depending on the size of the estate but can range from a few hundred to several thousand dollars. In some cases, the court might waive the bond.  Usually the court will insist on a bond even if it's waived in the will.

Step 3: Inventory and Appraisal of Assets

After the executor or administrator is appointed by the court, they must prepare an inventory and appraisal of the decedent's assets. This includes identifying all of the assets, such as bank accounts, real property, and personal property, and determining the value of said property. The cost of the appraisal varies depending on the complexity of the estate but can range from a few hundred to several thousand dollars. 

Step 4: Payment of Debts and Taxes

The executor or administrator must pay all of the debts and taxes before distributing any assets to the beneficiaries. This includes filing tax returns for the decedent and in some cases for the estate.  In some cases estate taxes that may be owed. The cost of paying debts and taxes varies depending on the amount owed and the complexity of the estate.

Step 5: Distribution of Assets

Once the debts and taxes have been paid, the executor (or administrator) can distribute the remaining assets to the beneficiaries (pursuant to a final court order). This includes transferring ownership of real estate, personal property, and distributing any remaining cash or investments.

The executor or administrator must file a final accounting with the court, which details all of the income, expenses, and distributions made from the estate.  The court issues a final court order closing out the probate and instructing the executor what to do.

Probate costs and fees varies depending on the size and complexity of the estate. Some costs and fees that may be associated with the probate process include:

• Filing fee for the petition for probate: $400 to $600
• Bond: varies depending on the size of the estate
• Appraisal fees: varies depending on the complexity of the estate
• Legal fees: varies depending on the complexity of the estate and the attorney's hourly rate
• Executor or administrator fees
• Court fees: Again varies depending on the services required

​Overall, the cost of probate in California can range from a few thousand dollars to tens of thousands of dollars, depending on the size and complexity of the estate. It's important to consult with an experienced estate planning attorney to understand the probate process and the costs and fees involved.  If you plan your estate properly, you can avoid probate altogether.  Probate is a public process, takes a long time, and can be quite frustrating to all those involved.