The term probate refers to the court-supervised process of gathering together and transferring a deceased person’s assets, once any creditors of the decedent have been paid, as directed by the decedent’s Will or California law if there is no Will. In California, the Superior Court supervises probate administration of decedent estates.

The probate proceedings are opened in the county where the decedent resided at the time of death. The person who opens the probate proceedings may be the individual named as executor in the decedent’s Will, or if there is no Will, a person who is entitled to receive a portion of the estate under provisions of the California Probate Code.

With some exceptions, all assets owned by the decedent at the time of death are subject to probate. Assets which may not be subject to probate are property held in “joint tenancy,” property held in a trust, and property held in accounts that are designated “payable on death” (sometimes abbreviated "POD") to a designated beneficiary. Although these assets usually avoid probate, such property may still be subject to probate in certain situations. For example, if the decedent owns property in joint tenancy and the decedent outlives the other joint tenants, the joint tenancy property will be subject to probate in the decedent's estate. Other assets determined by the designation of the decedent, such as life insurance or retirement accounts, may also avoid probate. It is important to confer with legal counsel to determine if a probate is needed, and if needed, which assets are included in the probate estate.

In California, no one has legal authority to act on behalf of the estate until the Superior Court appoints him or her as the estate’s “personal representative.”

The personal representative refers to the person appointed by the Superior Court to administer the decedent's estate. If the decedent died with a Will (referred to as “dying testate”), the person named in the Will as executor is usually appointed as the estate’s personal representative. If the decedent died without a Will (referred to as “dying intestate”), the Superior Court usually appoints one of the heirs as personal representative. In the latter case—where there is no Will—the personal representative is called an “administrator.”

If the person named in the Will as executor does not serve as personal representative of the estate for any reason, the person whom the Superior Court appoints as personal representative is referred to as the “Administrator C.T.A.”, which is an abbreviation from the Latin words meaning “administrator with Will annexed.”

Once the petition for probate (including the lodging of the Will with the court if the decedent died testate) is filed with the Superior Court, the court sets the matter for hearing. The law requires the person filing the petition (called the petitioner) to give notice of the hearing to all persons interested in the estate. The petitioner is also required to publish notice of the proceedings and file proof of publication with the court prior to the hearing. At the time of the hearing, the court will usually grant the petition and appoint a personal representative for the estate unless an interested party objects.

Regardless of whether he or she is an executor, administrator, or administrator C.T.A., the personal representative has the same duty to administer the decedent’s estate in accordance with California law and the direction of the Superior Court.

In California, the duties of a personal representative are extensive. First, the personal representative must inventory all of the decedent's assets that are subject to probate and submit the inventory to a court-appointed appraiser for valuation. After the appraiser determines the value of each asset, the inventory and appraisal is filed with the court. In addition, the personal representative must give notice of the court proceedings to all known and reasonably ascertainable creditors of the decedent. Creditors must file their claims with the court. The personal representative must investigate each claim, determine its validity, and approve or reject each claim. The personal representative must collect all income due to the decedent and pay all bills, including personal property, income, and real estate taxes. The personal representative must complete a detailed accounting of all estate transactions and file it with the Superior Court for review and approval. At the close of probate administration, the personal representative must petition the court to close the estate and distribute the assets to the persons entitled to receive them.

Although it is not required, the person who will be petitioning the court to serve as a personal representative is well advised to retain an attorney specializing in probate to represent him or her. While the probate forms are available on-line, the forms tend to be difficult to complete correctly, and the probate process is somewhat complicated. In addition, if a personal representative does not meet legally established deadlines, the close of probate may be delayed. Most individuals find that retaining an experienced probate attorney is advantageous and reduces the stress of the probate process.

The attorney will assist you in preparing and filing the petition for probate; filing the decedent’s Will (if one is to be offered for probate) with the court; marshalling the assets of the decedent; submitting assets to a court-appointed referee to determine value; preparing and filing an inventory of estate assets; providing notice to potential creditors and interested parties; preparing the accountings, petitions, and orders required by the court; representing you at court hearings; and coordinating the orderly distribution of estate assets at the close of probate.

Yes, personal representatives are compensated for their service to the estate. A formula, established by California law, based on a percentage of the value of the estate’s assets and income sets the payment for both the personal representative and his or her attorney. The fees, set forth below, for the personal representative are known as “statutory fees.” The personal representative's attorney is awarded the same fee as the personal representative.

• 4 percent of the first $100,000 of estate value
• 3 percent of the next $100,000 of estate value
• 2 percent of the next $800,000 of estate value
• 1 percent of the next $9 million of estate value
• ½ percent of the next $15 million of estate value
• Reasonable amount above $25 million of estate value

For example, below is a calculation of statutory compensation using hypothetical values. In this example, the personal representative would receive a statutory commission of $9,951. The personal representative’s attorney would also receive a statutory fee of $9,951. Example:

• Value of all estate property inventories $345,500
• Income collected during administration $ 2,050
• Total value of the estate $347,550

Compensation for an estate valued at $347,550

• 4 percent of the first $100,000 of estate value $ 4,000
• 3 percent of the next $100,000 of estate value $ 3,000
• 2 percent of the next $147,550 of estate value $ 2,951
• Total Compensation $ 9,951

In addition to statutory compensation, the Superior Court often awards compensation exceeding the statutory amount for extraordinary services provided to an estate. Examples of extraordinary services include the sale of real property; resolution of disputed creditor's claims; defending a Will contest; or participating in other litigation involving the estate. Working with an attorney will ensure that a personal representative is properly compensated for his or her time.

It depends. In California, an estate usually cannot be closed for at least six months in order to comply with legal notice and creditor claim period requirements. If there are no unusual items, the probate can usually be closed in eight to twelve months. An estate that has several parcels of property that must be sold or other issues (problems with creditors, taxes or Will contests) that must be resolved may remain open longer.

To close the estate and distribute estate assets, the personal representative's attorney must first file a final account, report, and petition for distribution. If the decedent left a valid Will, referred to as “dying testate,” the Superior Court will direct distribution of the decedent’s assets to the beneficiaries that the decedent named in his or her Will.

If the decedent died without a Will, referred to as “dying intestate,” the Superior Court will direct distribution of the estate according to California's intestacy scheme, found in the Probate Code. If the decedent was married, the spouse will receive all of the community property and part of the separate property. The remainder of the separate property will be distributed to the children, or grandchildren, or parents, or sisters and brothers, or nieces and nephews. If the decedent was not married, the property will be distributed to the decedent’s children, or grandchildren, or parents, or sisters and brothers, or nieces and nephews, or to other relatives. Furthermore, friends and favorite organizations will not receive any portion of an estate unless a valid Will or other estate planning document has been created. The State of California will receive the decedent estate only if the decedent dies without a spouse and without any living relatives.

Once the court has approved the petition for final distribution, the personal representative or his or her attorney will prepare the order approving the final distribution. Once the attorney has obtained a signed court order approving the petition, the personal representative can make distribution following the court order.