Probate is a legal proceeding that certain individuals who inherit property from a decedent (i.e., the person that died) must go through in order to take possession of the property. In the proceeding, the validity of the will is verified, all assets and debts of the decedent are inventoried, the decedent’s debts are paid and the decedent’s property is distributed according to the terms of the will to those individuals named in the will, called beneficiaries (or, where there is no will, the property is distributed to those who will inherit the property, called heirs, who are identified by state laws – please see the article entitled “Intestate Succession” in our Articles & Info section for more information on California rules regarding inheritance by clicking the following link: Intestate Succession)

A will is a legal document that indicates how you wish your property to be disposed of after your death, who will be appointed to ensure all of your debts are paid off and your assets are transferred to the individuals (beneficiaries) named in the will, and who will take care of and make decisions for your minor children.

If one passes away testate, that means they passed away with a will. If one passes away intestate, that means they passed away without a will.

The personal representative is the person who is appointed to inventory all assets and debts, pay decedent’s debts and to distribute decedent’s property according to the terms of a will (or, if no will, to those who will inherit the property as identified under state law). The personal representative can be an executor (person appointed in a will), an administrator (person appointed in court by a judge), administrator with will annexed (person appointed in court by a judge where there is either a will that does not name an executor, or there is a will that specifies an executor but they do not want to, or are not able to, act as executor) or a special administrator (a temporary administrator appointed to administer the estate until the non-temporary administrator takes over).

An executor is a person appointed in a will. An administrator is a person appointed in court by judge. An administrator with will annexed is a person appointed in court by a judge where there is either a will that does not name an executor, or there is a will that specifies an executor but they do not want to, or are not able to, act as executor. A special administrator is a temporary administrator appointed to administer the estate until the non-temporary administrator takes over.

According to California Probate Code § 8461, a person having the following relationship to the decedent is appointed in the following order: surviving spouse/domestic partner, children, grandchildren, other issue, parents, brothers/sisters, issue of brothers/sisters, grandparents, issue of grandparents, etc. (see Probate Code § 8461 for the complete list).

The fees that are required to be paid in probate will depend on the facts of the case, but will include, for example, court fees, publication fees, bond fees, probate referee fees (a probate referee estimates the value of non-cash assets, such as real property), personal representative fees, and attorney fees.

One first looks to the will for instructions on whether the personal representative will be paid, and, if so, how much. If the will provides no guidance on what the personal representative should be paid, or there is no will, state law controls what they should be paid. In California, where there is no will, or the will is silent on the matter, the personal representative is entitled to be paid, for ordinary services, based on the value of the estate as indicated in Probate Code § 10800 (4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, and 0.5% of the next $15,000,000 – for all amounts greater than $25,000,000, a reasonable amount as determined by the court).

The attorney is entitled to be paid, for ordinary services, based on the value of the estate as indicated in Probate Code § 10800 (4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9,000,000, and 0.5% of the next $15,000,000 – for all amounts greater than $25,000,000, a reasonable amount as determined by the court).

Heirs are those individuals, when you pass away without a will, who inherit your property as indicated according to state laws. Beneficiaries are those individuals/entities specifically named in your will.

A bond is like an insurance policy in that it protects those individuals/entities to whom the property is to be distributed, as well as creditors and other interested parties, from any wrongdoing on the part of the personal representative.

In California, a bond is required unless the will waives the requirement, or all beneficiaries in writing waive the requirement.

Simpler methods than a formal probate proceeding are available in California in certain cases. For example, depending on the facts of the case, you may be able to obtain all of the community and separate property of your decedent spouse in California without a formal probate proceeding, no matter the value of the estate, by filing a spousal property petition and attending a single hearing. If there are no issues, the court will typically approve the petition at the hearing. Again, this procedure only applies to surviving spouses.
 
Moreover, if the gross value of the decedent’s real and personal property in California is not more than $166,250 (this amount will be adjusted as defined in Probate Code § 890), the person(s) entitled to the property may be able to obtain the property by preparing and submitting an affidavit to the institution/entity holding the property, requiring them to release the property. Under Probate Code § 13050, certain property is excluded in determining the gross value of the estate.
 
However, in situations where the gross value of real property is more than $55,425 (this amount will be adjusted as defined in Probate Code § 890), even though the gross value of the real and personal property is not more than $166,250, one must obtain a court order through a summary court proceeding.
 
If the decedent owned real property in California whose gross value does not exceed $55,425, an affidavit can also be prepared, but it must be filed with the court clerk. If everything is in order, the court clerk issues a certified copy of the affidavit, which can then be recorded with the County Recorder in the County in which the real property is located.