The following information provides a brief overview of the estate administration process in California.
Any interested person may commence proceedings for administration of the estate of the decedent by a petition to the court. Cal. Prob. Code § 8000 (West 2000). The first task to take care of is to pick a good and reliable custodian for the will. The custodian then needs to determine whether or not a will exists. After you have decided whether there is or is not a will, you file a petition for probate with the Superior Court. Cal. Prob. Code § 7050 (West 2000). California approved forms must be used for the filing of the petition. The proper venue in which to file the petition for probate is the county in which the decedent was domiciled at the time of death. Cal. Prob. Code § 7051 (West 2000). The filing fee must be paid when the petition is filed.
Next, notice must be given that the petition has been filed. California requires a substantial amount of notice be given. Notice by publication is required. Cal. Prob. Code § 8120 (West 2000). Publication must be made at least three times and not on consecutive days. The first publication must be at least 15 days before the court hearing. Notice must be published in the city or county where decedent lived at time of death (in urban county notice is published in a legal newspaper; in rural areas notice is usually published in the daily paper because there is no legal papers). Cal. Prob. Code § 8121 (West 2000). Additionally, there must be mail or personal notice to heirs, beneficiaries, and alternate executors. Cal. Prob. Code § 8110 (West 2000). If the will is uncontested and there are self proving affidavits of the witnesses, then the hearing before the judge is likely to go quickly. Therefore it is important to have the proposed order prepared and ready to give to the judge to sign.
TYPE OF ADMINISTRATION
California allows for two types of estate administration. The first, court supervised administration, requires that the court first approve any action by the personal representative. This administration involves many hearings, is very expensive, and very time consuming. Very few administrations are done in this method.
The other type of administration is independent administration. Under this method the personal representative can do most things without court approval. However, court approval is needed for permission to pay the attorney, approval of self dealing transactions, and approval of the final distribution of the estate.
For types of administration generally, see Cal. Prob. Code §§ 10400-10592 (West 2000).
QUALIFICATIONS OF PERSONAL REPRESENTATIVE
There are several requirements that the personal representative must meet in order to qualify to serve. He or she must sign a duties and liabilities of personal representative form (a list of the duties and responsibilities of the personal representatives). The personal representative must also take an oath of office (which is fulfilled by signing the form). Cal. Prob. Code § 8403 (West 2000). In California bond must be posted in an amount that is equal to the value of the estate, unless the testator has waived the posting of bond in the will or the heirs and beneficiaries agree to waive it. Cal. Prob. Code § 8480 (West 2000). Once the qualifications are fulfilled letters will be issued, giving the personal representative authority. Within four months after receiving letters, With the assistance of the probate referee, an inventory should be prepared listing all of the property in the estate and its value.
For qualification of personal representative generally, see Cal. Prob. Code §§ 8400-8577 (West 2000).
NOTICE TO CREDITORS
Written notice must be given to all known or reasonably ascertainable creditors within four months of when letters are issued. Cal. Prob. Code §§ 9050-9051 (West 2000). This accelerates the statute of limitations on creditors claims. Once they have notice, they must bring their claim more quickly. If there are not enough assets in the estate to pay the creditors, a priority order is given in the probate code.
For creditor claims generally, see Cal. Prob. Code §§ 9000-9399 (West 2000).
As mentioned above, final distribution must be approved by court. All heirs and beneficiaries must be given at least fifteen days notice and the estate must remain open for at least four months. If the process runs smoothly, the estate could be wrapped up within seven to nine months.
For final distribution generally, see Cal. Prob. Code §§ 11600-12007 (West 2000).
Estate administration can be quite expensive. Some of the costs include bond premiums, and a statutory fee for the personal representative and attorney. In California the statutory fees are derived based on the value of the estate. The formulas for determining fees are given in the statute. Cal. Prob. Code § 10800 (West 2000). The court has the discretion to grant higher fees if necessary. The fees for the attorney follow the same scheme as the statutory fee for the personal representative. If the attorney and personal representative is the same person, that person can only receive one fee.
For costs and fees generally, see Cal. Prob. Code §§ 10800-11467 (West 2000).