Probate is the transfer of decedent’s assets to his or her heirs under the supervision of a Superior Court of California. Assets are transferred as directed by Will or by California laws of intestacy.
Probate requires at a minimum two court hearings and three court orders.
We recommend clients use the Independent Administration of Estates Act (the “IAE Act”). The IAE Act permits the sale of real property without an additional court hearing. The IAE Act saves valuable time.
We cover Southern California Counties of Los Angeles, Orange, San Bernardino, Riverside and San Diego.
Major procedures in the probate process are:
File a petition with the Probate Court in the county where the decedent lived.
Notice to all heirs and all persons named in the Will.
Publish notice of court hearing in local newspaper.
Court hearing to appoint a personal representative
Letters of authority
Marshal or collect decedent’s assets.
Ancillary administration of real property located outside California.
Prepare inventory and appraisal
Notice third party creditors, pay or deny creditor's claims.
Sell assets of the decedent.
File petition for hearing on court order for settlement of accounts, approval of all actions and payment of compensation
File ex-parte petition for final discharge and order to close probate
Issues Unique to Wills
Duty to Deliver
The person who has custody of the Will must lodge the Will with the Superior Court of California within 30 days of learning of the testator's death. The custodian is liable for all damages that result from failure to deliver the Will to the Superior Court.
To satisfy this duty the Will’s custodian delivers the original Will to the clerk of the Superior Court and mails a copy of the Will to the executor named in the Will.
Lost Original Will
If the testator's original Will is lost, was last in his or her possession and the testator was competent until death, it is presumed that the testator destroyed the Will with intent to revoke it. This presumption is a presumption affecting the burden of proving the Will. This is a major problem for a person named in the Will to receive a bequest who is not an intestate heir.
Self Proving Will
A Will is admitted in court if it is in writing, is the original, signed by the testator and is witnessed by two persons. If a will was not executed in compliance with these basic requirements the proponent of the Will must by clear and convincing evidence proof to the court that at the time the testator signed the Will, it was his or her intent to have the Will a valid testamentory document. Evidence needed to prove up the Will depends on who is sitting on the bench as Judge.
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