Probate Administration

Trust and Probate administration are very similar in that both require a trustee(s) or personal representative(s) or executor(s) to document, secure the estate assets, contact the heirs or beneficiaries, and pay creditors of a decedent. The “decedent” is the person who died. Their “estate” is the property they owned when they died.

Trust Administration follows when a loved one passes away, and that person has a living trust. The trust will need to be administered to settle the estate left behind by the deceased according to the trust document. When the original creator(s) of the trust passes the person(s) named in the living trust as “successor trustee(s)” become(s) the appointed trustee(s) of the trust and it is their responsibility to complete the tasks required to administer/settle the trust. These tasks can include:

Providing the legally required notices to the trust beneficiaries, heirs at law, Medi-Cal, California Victim’s Compensation Board, among others, as well as the legally required filings (i.e. document recordings with the appropriate Recorder’s and/or County Assessor’s office etc.);
Arranging what assets are included in the decedent’s estate;
Determining and paying outstanding debts and/or taxes of the decedent and his/her estate (this may include medical bills, credit card debt, etc.);
Distributing the assets to the named beneficiaries according to the terms set forth in the trust. This may be outright once all debts and/or taxes, and any legal requirements have been met or it may be after a certain number of years or until the death of someone else, among other requirements.

NOTE: Although one of the main purposes of a trust is to avoid the costs and formalities of court, the tasks above are still some of the responsibilities that need to be completed when settling a trust. A lot of these tasks are time sensitive and must be done within a designated time or the beneficiaries and/or successor trustee(s) may face penalties, costs and/or loss of privileges and exemptions to the inheritance.

Our firm understands that this process can be overwhelming for a successor trustee, therefore, our firm provides trust administration services to put you at ease through this difficult time and to ensure that all important steps and all requirements are being met.

See Probate and Trust Administration FAQ’s (link) for more information.

Probate Administration is the court-supervised administration of a decedent’s estate. Simply put, to transfer or inherit property after a love one’s death, you must usually go to court if you do not have the appropriate tools in place (i.e. living trust, joint tenancy, pay on death accounts etc.).

The probate administration process usually occurs in instances when the decedent leaves a will or dies intestate, without a will. (See Probate FAQ’s (link) for simplified methods that may help you avoid probate court even if your loved one died without a trust). This process, like in the trust administration process, serves to transfer assets and resolve debts so that the decedent’s assets can be transferred to the rightful heirs/beneficiaries according to a will or intestate succession (link intestate succession). However, unlike a trust administration, the probate administration last a lot longer and it costs thousands of dollars. See Probate FAQ’s.

Simplified Probate Procedures

California has simplified probate procedures for smaller estates that want to avoid probate court.

When an estate is worth less than $166,250, the executor can distribute the estate’s property directly to the beneficiaries without going through probate. The process involves the submission of an affidavit prior to the beginning of probate and a 40-day waiting period after the decedent’s death to distribute the assets.

The affidavit should include the following information:

The county where the deceased lived or where the property is located
A description of the property
An estimate of the property’s value
Information about the beneficiary (person that will receive the property)

There are certain properties that are not included in the $166,250 limit:

Real estate outside of California
Joint tenancy property
Property that goes to a surviving spouse
Multiple-party accounts
Payable-on-death accounts
Property held in trust

When the real property is worth less than $55,425, the beneficiary can file an affidavit to avoid probate and allow transfer of the property to them. This process involved a 6-month waiting period.

Rules for this procedure:

Not for a joint tenancy property
There is no current or past probate proceeding involving the property

A spousal property petition allows the transfer of property to a surviving spouse with a single court hearing as opposed to a full probate proceeding. There is no estate value limit on a spousal property petition.

Rules for this procedure:

The surviving spouse or conservator/representative of the surviving spouse’s estate can file the petition
An affidavit must be filed
Service of notice of the hearing to other heirs of the deceased spouse or those who have interest

Dealing with your grief and settling your deceased loved one’s estate is not an easy task. Knowing key probate administration steps can help you settle your loved one’s estate. The following California Probate Checklist can help you guide you through the administration process:

Locate Decedent’s will, if there is one.
Prepare a complete address list of all named executors, beneficiaries, and heirs at law.
Prepare and file a probate petition. If you are the person appointed as Executor in the Will, you should also be the person who files the petition to open probate and request the court to officially appoint you as the personal representative/administrator of the estate. The “personal representative/administrator” is the person who oversees the probate administration and settles the decedent’s estate. If the decedent died intestate, any competent adult may petition to become the Personal Representative of the estate. Keep in mind that the law gives a priority list for who should be the administrator of the estate. See Probate Code Section 8461
Arrange to publish a notice to creditors in a local newspaper (make sure that the local newspaper meets the statutory requirements).
Send notice of probate hearing to all possible interested parties.
Attend probate hearing.
Obtain and file probate bond, if necessary. A “probate bond” is posted by the personal representative/administrator of the estate to ensure he/she performs his/her duties properly. The bond is forfeited if probate court determines that he/she has failed to live up to his/her duties.
File and get several certified copies of the Letters authorizing Executor (if there is a will) or Administrator (if no will) to act on behalf of the estate, as well as a copy of the Order of Probate.
Notify all known creditors of the deceased debtor and wait for the creditor period in which they can bring a claim against the estate to expire. Unless the court orders otherwise, creditors have 4 months after issuance of Letters to come forward and file any claims against the estate.
File a Statement of Death of Real Property Owner BOE 502-D form with the County Assessor where any real estate is located for each real estate property.
Request Assignment of Probate Referee if not already done by the court.
Complete an inventory and appraisal of the estate with the Probate Referee and file an Inventory and Appraisal with the court.
Accept and/or reject any creditor claims and pay creditors. In other words, settle any claims against the estate.
File any required tax returns.
Obtain waiver of final account from all beneficiaries or heirs.
File a Petition for Final Distribution and Order with the court.
Attend hearing on Petition for Final Distribution and Order (make sure that throughout this process you prepare and file any necessary supplements to address comments in probate notes).
If final distribution is approved, distribute all assets in accordance with the approved petition and get signed receipts from each beneficiary.
Record Order of Distribution in the County where the real property of the estate is located.
File all signed beneficiary receipts and the Ex Parte Discharge of Executor or Administrator with the Court.

NOTE: This California Probate Checklist is a simple reference guide to help you stay on track of the administration process. The checklist is not intended to be comprehensive or applicable to all cases. Every estate is unique and some may require additional steps or legal procedures.

Consequently, it is imperative that you contact an attorney who can help you maneuver your way through the probate process. It is our job to be at the representative’s / administrator’s side every step of the way.

See Probate and Trust Administration FAQ’s (link) for more information.