What is Probate?
When an individual dies, the person likely leaves behind property. Frequently, a last will and testament is also left behind, which indicates how the deceased wanted any property or assets distributed. Consequently, the last will and testament may be subject to probate.
Probate is the process by which the court oversees the administration of the decedent’s last will and testament. When the will is subject to probate, there might be property that must be disposed of pursuant to the sale. This sale is also known as a probate sale.
Sometimes a probate sale is necessary in order for the estate to get money to pay off debts of the decedent, while in other instances, the sale may be done simply to liquidate assets of the estate.
The process involves having a personal representative appointed, such as an executor or administrator. The estate’s personal representative is responsible for settling the claims of creditors, inventorying the estate, paying any taxes that are due, selling the house, administering the house during the probate and then distributing the estate to the appropriate heirs or beneficiaries.
How Long Does the Probate Process Take in California?
The duration of the probate process varies with the size and complexity of the estate, as well as, the difficulty in locating all the beneficiaries. If there is a will and it is contested, or anyone objects to any actions you take as the personal representative, things can really drag out.
The average probate in California – from the date the petition for opening the probate is filed by your attorney to the date that the court orders final distribution of the assets – takes nine months of longer.
I’m certain you’re wondering why so long. In most California counties, it takes 6-8 weeks from the filing of the petition for an estate personal representative to be appointed. Once appointed, the executor or administrator has to give notice to all the creditors and those creditors have four months to file a claim.
After that, the real property needs to be prepared, marketed and sold. Plus, the personal property needs to be addressed. This could take another three to four months, including the notice of proposed action. Handling the real property and the notice to the creditors can be occurring simultaneously.
Finally, after the property has been sold a petition for distribution at the end of the probate also requires six to eight weeks before an actual order of distribution is signed by the court
What are the Responsibilities of the Personal Representative, Executor or Administrator?
The personal representative, also referred to as the Executor (if there is a will) or administrator (if there is not a will) is appointed as part of the probate proceeding and has the responsibility of managing the estate through the proceeding, subject to established probate rules and procedures.
The executor is nominated in the will. If there is no will, or all the executors who are nominated have died or are unwilling to serve as the executor, state law provides that the decedent’s closest relatives have the highest priority to become administrator of the estate.
Keep in mind that the probate court has a considerably amount of control over the activities of the personal representative and requires that she or he obtain prior permission of the court before performing certain actions such as the sale of the real estate owned by the estate.
What Do I Do With the Personal Property of a Decedent?
There are three main options to liquidate the remaining personal property. Keeping in mind that as the administrator or executor to act prudently and maintain a fiduciary duty to earn as much as possible for all the heirs or beneficiaries of the probate or trust. Experience shows that one of these options will work best for your situation:
- Option 1: Donation
- Option 2: Estate Sale
- Option 3: Buy Out
I have answers to all these questions, if you are ready to speak with me, call me at 760-912-8905. I’m here to help!