Allegiance Law Offices, A.P.C.   
700 N. Pacific Coast Highway Suite 202-A, Redondo Beach, CA 90277
Telephone (310) 937-4529  Fax (310) 937-4440
Back to Home Practice Specialty: Trusts and Wills

Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died.

To do this, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court. But it is not always easy to tell whether you need to go to court or qualify to use a different procedure.

This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case.

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What is Probate?

Probate Court or
Simplified Procedures

If the Case Belongs
in Probate Court
Guides To Wills,
Estate Planning, &
Living Trusts

 

What is Probate?

Probate means that there is a court case that deals with:

• Transferring the property of someone who has died to the heirs or beneficiaries;
• Deciding if a will is valid; and
• Taking care of the financial responsibilities of the person who died.

In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.

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Probate Court or Simplified Procedures

You may or may not need to go to probate court to obtain title to property belonging to a dead person. Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property.

And deciding if probate court is needed may also depend on the how the property is owned (the type of title ownership) or if there is some type of contract with beneficiaries. For example:

Type of Title Ownership: : Sometimes all or some of a dead person’s property passes directly to the beneficiaries because of how the property is owned. So if the property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people, or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to clarify his or her ownership of the transferred property.

Type of Contract: Sometimes all or some of a dead person’s property does not need to go through probate to pass to the beneficiaries. This is because this property is a type of contract with named beneficiaries. Examples of this are life insurance that pays benefits to someone else other than the dead person’s estate, retirement benefits, death benefits, and trusts.

 

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If the Case Belongs in Probate Court

All forms open in PDF format.

1.  The custodian of the will (the person who has the will at the time of the person’s death) MUST, within 30 days of the person’s death:
Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.


Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).


If the custodian does not do these things, he or she can be sued for damages caused.


NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The   person who wants to be the administrator must file a Petition for Letters of Administration (Form DE-111). The administrator usually is the spouse,  domestic partner, or close relative of the dead person.

2. Someone, called "the petitioner," must start a case in court by filing a Petition for Probate (Form DE-111). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
      The Petition for Probate has different options, like:
Petition for Probate of Will and for Letters Testamentary
Petition for Probate of Will and for Letters of Administration with Will Annexed
Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form.  Talk to a lawyer for help with your case. 

3.   After a probate case is filed:
The probate clerk sets a hearing date.
The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (Form DE-154), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.

The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.

The petitioner must arrange for notice to be published in a newspaper of general circulation.

A court probate examiner reviews the case before the hearing to see if it was done correctly.

Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).

The personal representative gathers up the assets and prepares an Inventory and Appraisal (Form DE-160) to be filed.  The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county.

The personal representative provides formal notice to creditors with the Notice of Administration to Creditors (Form DE-157) and pays the debts.


A final personal income tax return is prepared for the person who died.

The probate court figures out who gets what property.
A Report of Sale and Petition for Order Confirming Sale of Real Property (Form DE-260) is filed with the court so that sales of real property are confirmed by the court.

If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.

The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.

After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.

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Guides To Wills, Estate Planning, & Living Trusts

The California Bar Association has published useful guides.

Do I Need a Will?

Do I Need Estate Planning?

Do I Need a Living Trust?

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