California Probate Information and Laws
Table of Contents
The Probate Process
Exceptions to Probate
Estates Where There is No Will
Attorney and Executor Fees
Inventory and Appraisal
Notifying Creditors and Dealing With Creditor Claims
Sales of Real Estate and the Independent Administration of Estates Act
Account, Report and Petition for Distribution
The Probate Process.
Probate is the process by which the Probate Court handles a deceased person’s estate if there
is no trust; it applies if there is a will only, or if there is no will. (One of the primary reasons for having a trust is to distribute the
estate without having to go through probate.) Essentially a probate petition is
filed with the Court, creditors are notified, the personal representative lists
all of the estates assets and liabilities, a probate referee appraises the
assets, any disputes relating to the estate are settled, a final accounting is
made, the creditors are paid and then the remainder is paid to the
Probate often takes 8 to 10 months, although it can take even longer. During
that time, if the family needs money from the estate, a motion has to be brought
and a court order obtained.
The person handling the estate is called the "executor" if there is a will
or the "administrator" if there is no will or no executor is named in the
will. "Personal representative" or "estate representative" (or just
"representative") refers to either an executor or an administrator.
Exceptions to Probate.
No probate is required if the estate is primarily owned by a trust. Note,
though, that in this case if the trust owns real estate one or more filings
often need to be made with the county recorders office to remove the
deceased’s name from the title. If more than $100,000 in gross assets (with
certain exceptions, discussed below) are outside the trust, though, then probate
may still be needed.
All Property Goes to the Spouse. If there is no trust covering the
property, then it may be possible to file only a spousal petition (versus going
through a full-blown probate) if the surviving spouse has 100% unqualified
ownership of the real property (meaning there are no co-owners, it is not merely
a life-estate, etc.). Usually this requires either a will giving 100% of the
property to the surviving spouse and/or the title to any property having been
held by the spouses in joint tenancy (with right of survivorship) or community
property with right of survivorship. If this is not the case, then a probate is
almost always required.
Worth Less Than $100,000. If, though, the gross value of the estate is
$100,000 or less (without
subtracting any liens, debts, deeds of trust, etc.), there are simple procedures
for distributing an estate without using formal probate proceedings. Certain
items are excluded from the calculation of the $100,000. Some of these are:
Joint tenancy property (real or personal);
Community property with right of survivorship;
Half of all other community property;
Life insurance and death benefits (assuming
that beneficiaries are named);
Real property outside of California;
Any motor vehicles.
Multiple party accounts.
Probate May Still Be Advisable. Even in these cases, probate still may be
appropriate, though, if there are strained family relations, complex
investments, large or complex claims by creditors, or an interest in a
Estates Where There Is No Will.
Where the decedent died intestate (without a will), California law generally
distributes the estate as follows:
If there is a surviving spouse, that spouse
All community property.
As to the decedent’s separate
property (if any):
All of it if the decedent did not leave any
surviving issue, parent, brother, sister, or issue of a deceased brother or
One half if the decedent has only one child or
has one deceased child with issue.
One half if the decedent leaves no issue but
leaves a parent or parents – or leaves their issue or the issue of either of
One-third if the decedent leaves more than one
child, leaves one child and the issue of one or more deceased children, or
leaves issue of two or more deceased children.
The rest goes first to the decedent’s
surviving children or, if any of them are deceased, to the children’s
If the decedent has no surviving children or
deceased children with surviving issue, the rest goes to:
The decedent’s parents, if living.
The decedent’s brothers and sisters (or their issue if any of them are
Attorney and Executor Fees.
Attorneys’ fees for handling a probate are
set by California statute and are based on the gross
estate, meaning that there is no subtraction for any liens, debts, deeds of
The amount is based on a sliding percentage as
Four percent on the first one hundred thousand
Three percent on the next one hundred thousand
Two percent on the next eight hundred thousand
One percent on the next nine million dollars
One-half of 1 percent on the next fifteen
million dollars ($15,000,000).
For all amounts above twenty-five million
dollars ($25,000,000), a reasonable amount to be determined by the court.
For example, if the estate is a house worth
$700,000, then the probate fees for the attorney will be $17,000 ($4,000 +
$3,000 + $10,000) – regardless of the size of any loans against the property.
If extraordinary services are required, the
attorney may be able to recover additional amounts.
This, of course, is a major reason for having a
trust so that the estate can be distributed without having to go through
The executor of a will is also entitled to the
same amount of statutory fees unless the will does no allow them, although the
executor can waive those fees if he/she wishes (and family members often do).
Generally, unless there is a
will that designates an executor and waives the bond, the personal
representative must post a bond to guarantee that he/she will fulfill his/her
If the person is out of state, the Court will
generally require a bond even if the will waives it.
Even if the will does not waive the bond, if
all interested parties request in writing that the bond be waived and the
written waivers are attached to the petition, the bond will usually be waived.
In estates that require a bond, the Court will
generally set the bond equal to the amount of the equity in the property plus
the value of the personal property, plus twice the value of the annual income
from all estate property.
The premium for the bond is often approximately
one percent (1%) of this total. Note that most bonding companies will not issue
a bond if the personal representative is not formally represented by an
Inventory and Appraisal.
One of the first things that the personal representative does is file an inventory with the
Court of all the assets of the estate that are covered by the probate. Assets
that are not subject to probate (for example, joint-tenancy property with right
of survivorship) are not listed.
Generally at the beginning of the probate a
probate referee is also appointed to make an appraisal of the estate assets.
While it is possible to seek a waiver from the Court of the appraisal by the
probate referee, good cause must be shown (such as the only items in the estate
are the deceased’s personal effects, which are minimal, and one piece of real
property that has recently been independently appraised).
Often the personal representative sends a
letter to the probate referee with basic facts regarding each major asset in
order to avoid delay and mistakes.
The probate referee is compensated by a
commission of 1/10 of 1 percent of the total value of the assets appraised, with
a minimum fee of $75 and a maximum fee of $10,000. If the reasonable value of
the referee’s services is more, the referee can petition for a higher amount.
Notifying Creditors and Dealing With
Publication of the Petition for Probate. The notice of the petition to
administer the estate must be published in a newspaper. In many cases the
newspaper can be a free weekly advertising publication. Proof of the publication
must be filed with the Court before the hearing on the petition for probate is
to Specific Creditors. The personal representative must give notice
directly to reasonably ascertainable creditors before the later of i) four
months after the date of issuance of the "letters" appointing the
representative or ii) 30 days after the personal representative first becomes
aware of the creditor. Proof of the notice to each creditor must be filed with
Limits for Creditors to File Claims. Each creditor must file a claim. The
general rule is that a creditor’s claim is barred if it is not filed by the
later of i) four months after issuance of the "letters" appointing the
personal representative or ii) 60 days after the date that specific notice is
given to that creditor. Creditors must file their claims with the Court and
serve a copy on the personal representative.
In addition, all creditor lawsuits must be
commenced within one year after the date of death. This deadline is extended,
though, if the creditor files a timely claim and in certain other limited
and Rejection of Claims. The personal representative must file and serve
any allowance or rejection of a claim.
If a claim is rejected, the creditor must bring a
lawsuit in the proper court within three months of the date of service of the
notice of rejection (or within three months after the claim becomes due, if that
is later) or the claim is barred. If suit is brought, the plaintiff must notify
the personal representative.
If the personal representative does not reject a
claim within 30 days after the claim is filed, the claimant may deem the claim
rejected and file a lawsuit. The estate cannot be closed while there are
unresolved filed claims, so some creditors are content to wait for an eventual
approval by the personal representative.
The personal representative and the claimant
may agree in writing that to refer the claim to a temporary judge. The hearing
on the claim is then heard without pleadings, discovery or jury and the
determination has the effect of a judgment.
Sales of Real Estate and the Independent
Administration of Estates Act.
Selling real estate is often the biggest
job that a personal representative has.
With one exception, if the personal
representative (executor) wishes to sell real property that is part of the
probate estate, the property can only be sold with Court approval and notice to
those who have an interest in the property – and the sales price must be for
at least 90% of the appraised value.
The one exception is where the personal
representative has been given authority to act under the Independent
Administration of Estates Act (IAEA) and
the property is not being purchased by the personal representative or his/her
attorney. In that situation the "at least 90%" rule and the requirement that
the personal representative "obtain the highest and best price for the
property reasonably attainable" do not apply .
The request for authority under the IAEA may be
made at any time, though this is usually done as part of the initial petition
Any interested party can object to the grant of
authority, although the Court must grant the authority unless an objecting party
can show good cause.
In any case, the personal representative must
give notice of the sale to all affected parties. The notice must include all
material terms of the transaction, including the sales price and the amount of
any commission. Notice need not be given if all interested parties may sign a
waiver of notice or a consent to the request for authority.
With a sale of one to four units of
owner-occupied property located in California where a loan secured by the
property is in default, the sale agreement must comply with California’s
relatively intricate pre-foreclosure sale statutes. To be safe, anyone indicated
in any will as receiving an interest in the property, any surviving spouse and
anyone receiving an interest under the intestacy laws (if there is no will)
should be considered an owner.
Account, Report and Petition for
The personal representative must file the final accounting,
a report and a petition for distribution when there are sufficient funds to pay
all debts, the time for filing creditors’ claims has expired, and the estate
is ready to be closed.
The requirement of filing an accounting (though
not the report or petition for distribution) can be waived if all person entitle
to any distribution from the estate sign and file a written waiver or a written
acknowledgment of receipt of their share of the estate.
With the accounting, the representative
accounts for the financial transactions that have happened since his/her
appointment (or since the last account, if an account has been filed with the
The representative also must file a report on
matters that are not self-explanatory from the exhibits. This includes actions
taken under the Independent Administration of Estates Act.
Finally, the representative petitions for
approval of the accounting, approval of his/her acts, compensation for the
attorney and the representative (if allowed) and distribution of the estate.