The probate process is designed so that the court can ensure that the assets of a decedent are distributed according to the will or state law. In cases where the deceased person left no will, the probate court appoints an administrator of assets to help manage the estate in accordance with the Probate Code. Alternatively, where the decedent left a will, the person named the executor of the will is to lodge the original will with the court when initiating the process and the estate will be administered in accordance with the will.
At David J. Greiner Law Corp we like to tell clients to think of a will as “instructions for the probate court.”
Overview of the Probate Process
If a person passes away with a last will and testament and estate plan in place (i.e., dying testate), their identified heirs receive probate assets. If the person passes away without a will (i.e., dying intestate), the state’s intestate succession laws determine property distribution. These are the probate laws that define which relatives can inherit. State law governs most aspects of probate, estate administration, and intestacy. Either way, the probate court oversees the probate and estate administration legal process. This probate administration processes documents and distributes a decedent’s estate after death.
When Things Get Messy
Things can get messy and inefficient when interested persons attempt to argue about which person should be named the administrator or executor of an estate. In this regard, the probate court judge will settle legal disputes about who is vested with the right to determine a person’s assets. If there is little dispute about “who” will inherit, disputes about who is in charge are largely wasteful and expensive endeavors that should be avoided at all costs. To this end, our firm goes to great length to eliminate such disputes before filing a petition to avoid heirs from seeing their inheritance shrink unnecessarily.
In our opinion, the goal of every estate should be an efficient administration. Grief, past bad feelings, or thoughts about who “deserves” to inherit are not in align with a goal of efficiency and should be avoided if possible.
Additionally, during the process disputes can arise as to who inherits which assets or whether certain assets should be included in the estate. In such unfortunate events, the court will be asked to decide such disputes, which may include disagreements over the administration of the estate or the validity of a will.
Always keep in mind, disputes almost always equal extraordinary fee awards for attorneys. If an estate is facing a dispute that likely will result in the award of extraordinary fees, potential heirs are encouraged to do an in-depth cost analysis of what the asset value is and likelihood of success. The forecasted probability of success multiplied by the asset value should exceed the estimate of extraordinary fees by four times to be considered as a successful endeavor. Always keep in mind that no matter how probable the forecast of success is, there is always the opportunity that the improbable is the actual result.
Estate Administration Timeline
The estate administration process begins when the executor presents the will for probate, or an interested person petitions the court to be named the administrator of the estate. The interested party petitions the probate court where the decedent lived or owned property.
Here’s a general idea of when to handle specific steps for a typical estate administration. This basic timeline applies when no interested parties object. An interested party’s objection to the will or petition could cause a delay.
In the first 1 to 4 months, the administrator should notify people and institutions of the deceased person’s date of death. This task includes providing a copy of the death certificate to institutions such as:
Life insurance company
Social Security Administration
State office of social services (if the decedent received certain government benefits)
U.S. Department of Veterans Affairs, where applicable
Others as needed
Additionally in this time period such person should prepare and file a “petition for probate” or a “petition for letters of administration” by:
Providing the probate court with the decedent’s original will and any witness statements
Identifying all heirs, beneficiaries, and interested parties of the estate
Providing the probate court with the correct contact information for all interested parties
Thereafter the court will schedule a hearing regarding the petition. This is the point where it is strongly discouraged to have disputes or conflict. At that hearing, if successful, the probate court will issue the following documents, as applicable:
Letters of administration
Letters testamentary
Final orders appointing the personal representative
File an estate bond (if ordered).
Once the above are received by the personal representative diligent attention should be given to the following:
Provide notice to creditors to make claims.
Request an estate EIN number from the IRS.
Open an estate bank account.
Provide notice to the IRS of the appointment of a personal representative.
At the hearing for the petition, the court likely will schedule the personal representative, or their attorney should they have retained counsel, a time frame for the first accounting. To this end the court will be requiring the following:
Complete estate inventory and appraisal of personal property to calculate the value of the estate.
Collect any owed rent or property allowances.
Initiate lawsuits to collect any debts owed to the estate.
Sell any real or personal property in an estate sale.
Gather and collect on any insurance policies in which the estate is a beneficiary.
Provide the heirs and beneficiaries with a copy of the estate inventory and/or an accounting of the estate.
The payment of outstanding debts and distribution of assets may not be made until after the court provides final orders of which a final accounting must be filed and approved by the court prior to receiving such order.
How Long Does This All Take?
A typical probate and estate administration process may take up to two years in California without a dispute. That said, David J Greiner Law Corp strives to complete the process in less than half the average time, or under one year. Of course, if the estate encounters any pitfalls, generally meaning disputes, the sky is limit on duration to resolve the probate process. In our opinion, an efficient probate administration is the best closure to losing a loved one and generally the most probable way of receiving the greatest inheritance. To achieve an efficient probate administration an estate should strive to have little to no disputes and avoid disputes regarding assets of nominal objective value.
