Under California law, a process known as probating of a will governs the distribution of a person’s assets (commonly known as the person’s “estate”) upon that person’s death. The California probate process begins when the executor of the will files a document called a petition for probate with the probate court. The executor is the person legally responsible for disposing of the assets, and for ensuring debts of the estate are paid. 

What Happens During the Probate Process?

The executor must initiate the probate process by preparing and filing the petition for probate, and by filing the original will with the probate court. The executor must then give notice of the intent to probate, to all interested parties.

As part of the probate process, the executor must “prove” the will. Under California law, once a will is deemed “proved,” the will is admitted to probate. A “proved” will is a will that was prepared and executed properly under California law (i.e., the will must be in writing, signed by the person making it, and witnessed by two disinterested witnesses). The will must have been signed by an adult with testamentary capacity – the legal and mental capacity to make a will – at the time of signing the will.

The remaining steps of the probate process typically include:

• The executor’s making an inventory of all of the deceased person’s real and personal property;
• The executor’s then having the property appraised, to determine its value;
• Paying any debts of the estate owed to creditors; and
• Payment of any taxes owed by the estate

Once these steps have been completed, the remaining property is distributed in accordance with the terms of the will. The probate court retains supervision over the probate process during this entire time. The has the power to rule on will disputes and will contests.

What Happens if there is No Will Available?

If the person died without a will, the laws governing intestacy apply. This is the legal term for dying without a will apply. These laws require appointment of an estate administrator, followed by distribution of assets to specific family members in an order of preference defined by California law.

California probate and intestacy laws may differ from those in other states. You may need to consult with a lawyer if you have questions about the laws in other areas.

When is Probate Not Necessary Under California Law?

Under California probate laws, it is not always necessary for the deceased person’s property to pass through the probate process. California offers simplified procedures for transfer of an estate, without the need for a formal probate process. Under a simplified procedure, property can be transferred directly to its intended recipient.

Simplified procedures are available depending upon the amount of money involved, the nature of the property involved, and who is claiming the property. For instance, consider:

• Amount of Money Involved.  Estates with a value of $150,000 or less may qualify for a non-formal probate case (simplified procedure);
• Type of Property Involved. Simplified procedures may be available with respect to assets that have named beneficiaries. A named beneficiary is an individual who was named by a decedent, when alive, to receive the asset at the decedent’s deathany of the assets have named beneficiaries. Assets with named beneficiaries include (among others):
  • Life insurance proceeds;
  • Retirement accounts, pensions, or annuities;
  • Bank accounts; and
  • Property in a living trust.

• • • A California living trust is a legal document through which a person’s assets are placed in a trust during their lifetime. The person may use the assets under control of the trust for as long as the person is alive. When the person dies, the living trust assets are passed to specific individuals the person who created the trust named as beneficiaries;

• • Simplified procedures may also be available for certain government benefits; Such benefits may include (among others):
    • Social security survivor benefits; and
    • Benefits as a dependent of a deceased veteran. 

• Who is Claiming the Property. The type of ownership is used to determine whether a simplified procedure is available. A simplified procedure may be available for joint tenancies,and community property with an explicit right of survivorship. The procedure may be available because the identity of the beneficiary is already fixed by law:
  • If the property was owned in joint tenancy, the surviving owner receives the entire property. (One of the features of a joint tenancy is known as the right of survivorship. Under this right, when one tenant dies, the remaining joint tenant(s) receive the property automatically); and
  • If the property was community property with an explicit right of survivorship, the surviving spouse, by law, would likely obtain the entire asset upon death of the other person. 

Do I Need a Lawyer for Help with California Probate Laws?

California probate laws are complex. You should consult with a California probate lawyer if you need help with a probate matter. A qualified lawyer near you can advise you as to how to navigate the probate process. They can also help you avoid probate, if that is your desire. The lawyer can also represent you in the probate process and during any will disputes that may arise.