Most of us have an idea of what we would like to happen to our belongings when we die. We would like our favorite niece to receive a special jewel or our house (usually our most precious asset) to pass into the hands of our children. But many of us have no idea how this happens. This article will explain exactly what happens when we die and what happens to our things (the legal term for our things or belongings is our ‘estate’).
PLAN
If we have a plan to distribute our belongings, that usually means we have a will or trust. A will is a legal document that lets everyone know who will be the executor of your estate; who should receive your property; and how you want your estate to be managed. A will in California must be witnessed by at least two adults and signed by the person creating the will. It doesn’t have to be long. It does not have to be notarized. Your family members should be able to easily access the original copy of your will after your death. Probate is the legal procedure to carry out the wishes you have stated in your will. Without it, the court will implement its backup plan. A properly valid trust is not required to go through the probate process unless it is contested. Also, more informal plans, such as ‘pay-on-death’ accounts, do not have to go through probate.
The petition
Filing the will with the court is the first step in the probate process. This is done with a petition asking the court to recognize the will as your last will. The petition also asks the court to authorize the person you named in the will as your executor to carry out your final wishes. Usually, the person you have designated as executor will take over the task of preparing the petition or will hire an attorney or legal document preparer to do it. The person requesting the court’s authority is called a petitioner.
The petitioner must identify all members of your immediate family, your spouse who died before you, and each person you named in your will. The petition must also state your assets, an estimated value of your property’s value, the type of authority the potential executor should be granted (limited or independent control), and whether a bond is required. The petition is a court-required form and, once completed, must be filed with the court along with a copy of the will. The original copy of your will must be filed with the court and is kept in the court files.
Once the petition is completed and a copy of the will is attached, it is filed with the court with the required filing fee. Currently, the filing fee in California is $435 for a probate petition. Once the fee is paid, the court clerk will assign a hearing date so the judge can decide on the petition. The short schedule varies from county to county. Some counties assign hearing dates within 15 or 20 days, while other courts are so far behind that the petitioner may not get a hearing date for two months. Prior to the hearing date, court staff will review the petition and present it to the judge with any questions or comments.
Hearing
Before the judge issues a decision on the petition, a summary of the petition must be published in your local newspaper. In fact, the petition must indicate the specific name of the newspaper in which the publication will be published. This posting is required to let potentially interested parties know that someone is seeking court permission to probate their estate. This public notice gives anyone the opportunity to come forward and challenge the appointment of the executor or challenge the will itself. Family members and next of kin should receive a separate notice that should be mailed directly to them. Just as the newspaper notice gives the public an opportunity to object, mailed notices give family members the same opportunity.
Assuming no objections are filed and all procedural steps (such as notices) have been followed, the judge will grant the probate petition at the hearing and your executor will be officially appointed to administer your estate. It is at this time that a bond from the executor must be filed with the court, if necessary. After the hearing, your executor will receive signed copies of the order of probate and letters of appointment. Like the petition, the petitioner is also responsible for preparing these documents for the judge’s signature. Your executor will need these two documents as proof that you are authorized by the court to pay your debts, collect all money owed to you at the time of your death, access all your bank or brokerage accounts, and take care of your property. . Almost all third parties, such as bank representatives, mortgage companies, title companies, and government officials, will require a copy of the order and letters before disclosing any information about your affairs. Your executor will probably need a certified copy of these documents. Certified copies are available from the court clerk for an additional fee.
Once appointed, your executor will not only have control of your estate, but will also be accountable to the court and the beneficiaries for how your estate is managed. In fact, every action taken during the administration of your estate must ultimately be reported to the court. And some actions, like selling your home, require you to give the beneficiaries and/or the court advance notice of the sale. But most importantly, her executor is responsible for carrying out her final wishes. The best things she can do to facilitate that is to make sure her will has been executed correctly, make sure her loved ones know where the original will is located, and finally, make sure her wishes are clearly expressed. Following these steps will make the process of fulfilling your last wishes easier.