- An Overview
“Probate” is the court supervised process for the administration of a decedent’s estate. Currently in California, the process is required for decedents’ estates which exceed $150,000 in value, or does not pass outright to a surviving spouse. The purpose of the administration of an estate is to ultimately pass good title to property to the rightful recipient. It serves to ensure that the decedent’s desires as stated in his or her last valid Will are carried out and it protects certain creditors. If the decedent had no Will, the laws of intestacy govern. California law provides an orderly procedure to accomplish all of these things.
- The Petition for Probate or Petition for Letters of Administration
The first document to be filed to start the probate process is the Petition.
Personal Representative. The petitioner will be the personal representative (hereinafter “PR”), which is the generic term for the person appointed to administer the estate. If there is a Will, the PR to be appointed is the Executor. If there is a Will but the PR is not named in the Will to serve as the Executor, the PR is referred to as the “Administrator With-Will-Annexed.” When there is no Will, the PR is referred to as the “Administrator.”
IAEA. The petitioner may also request authorization to administer the estate under IAEA (Independent Administration of Estates Act). IAEA gives the PR broad powers to administer the estate little or no court supervision. The most commonly used authority is to sell real property without obtaining a court order (notice of proposed action is given instead), and without having to publish notice of sale when the Will does not waive it. Unless special considerations and circumstances exist, we routinely request IAEA powers for more efficient and expedient administration.
The Bond. The general rule is that a bond is required to be posted by the PR, unless waived. The bond is to ensure the faithful performance of the PR and protect those persons interested in the estate (beneficiaries, heirs, creditors) from the PR absconding with the assets or otherwise wasting the estate. The cost of posting bond is a charge to the estate. Attorney-prepared Wills often waive the requirement of bond for the Executor. However, even without the provision, all beneficiaries or all heirs may waive in writing the requirement of a bond. Courts have the discretion in requiring a bond, even if waived under the Will, such as when the PR resides outside of California or on petition from any interested person.
The amount of the bond is based on the estimated value of the personal property and probable annual income of the estate and if full authority is given under IAEA, then the value of decedent’s interest in the real estate is included. If limited authority under IAEA is granted, then upon court approval of the sale of real property, proceeds may increase the bond, or the net proceeds (as well as any other property) may be deposited into a “blocked” account where withdrawals are permitted only on court order, to eliminate or reduce the amount of the bond.
Persons Entitled to Notice. All heirs and persons named in the Will, including contingent beneficiaries, are to be named in the Petition, as they are entitled to receive notice of the probate. When the beneficiary is the Trustee of a revocable trust (for example under a “pour over will”), and the Trustee is the same person as the Executor, the name and address of each beneficiary of the trust are required to be listed in addition to the Trustee.
- Notice of Hearing and Publication
Once the Petition is filed with the Court, a hearing date will be assigned by the clerk. The completed Notice of Petition to Administer Estate is then mailed to all persons entitled to receive notice, which are those persons set forth in the Petition. The Notice is also required to be published in a newspaper of general circulation in the city of decedent’s death. Once the Notice is duly published, an Affidavit of Proof of Publication is filed with the court. Timely service on all interested persons and publication are required before the court can appoint a PR.
- Appointment of Personal Representative
On the hearing date, Petitioner will be appointed by the court as the PR (Executor or Administrator or Administrator CTA). Upon receipt of a signed Order for Probate (or Letters of Administration), and after filing any required bond, then “Letters Testamentary” (Executor) or “Letters of Administration” (Administrator), depending on your Petition, are issued by the clerk. The Letters is the official authority for the PR to act on behalf of the estate.
- EIN (Employer/Taxpayer Identification Number)
It will often be necessary to open up an estate bank account to administer the estate, and a federal employer/taxpayer identification number (EIN) from the IRS is obtained for the PR, since the PR cannot use his or her own personal social security number and cannot use the social security number of the decedent. The EIN will also be needed if there is a sale of real property or securities.
Probate Process Time Table
These are the initial steps in opening a probate in California, through the appointment of the personal representative at the court hearing. After the PR has been appointed, the PR must then duly comply with his or her duties, including filing the inventory and appraisal of the estate’s assets and making distribution of the estate.
Click here for the Probate Process Time Table for an overview of the complete probate process with general time frames. It is intended to be a summary of the basic requirements.