In our post Riverside Probate Lawyer Discusses Probate Process Part 1, we discussed what a probate is, what an executor, administrator, and personal representative is, the various probate procedures for small estates (less than $150,000) and the spousal property petition. Now we will dig into the process relating to a formal probate proceeding.
Preparing and Filing the Petition
Before you file your petition for probate, you will want to make sure you have gathered all your information. You will want to have the original Last Will and Testament, if there is one. If the Will is a holographic Will (handwritten), you will need to type what it says on an exhibit page. You will want to obtain a certified copy of the death certificate. You will need to make a list of all the relatives of the decedent along with their addresses and phone numbers. If there are beneficiaries under the will other than family members, you will need to obtain their addresses and phone numbers also. You should start to take inventory of all the assets and liabilities of the decedent. You will need to give an estimate as to the size of the estate in the petition. This information will be needed to complete the Judicial Council Form Petition for Probate, Form DE-111.
On page 1 of the petition you will want to indicate whether the petition is for; (1) a probate of a Will, (2) a probate of a Will and for Letters of Administration with Will Annexed, or for Letters of Administration. A probate of the Will and for Letters of Administration with Will Annexed is needed where the executor(s) nominated under the Will are not available to serve as executor. Letters of Administration are issued where the decedent died without a Will (intestate).
At paragraph one you indicate what newspaper the probate proceeding will be published in, and whether that publication has already been arranged or whether that will be arranged prior to the first hearing. The publication must appear in the newspaper three times prior to the first hearing.
Paragraph 2 is where the petitioner identifies himself or herself. Line 2a is where the petitioner indicates his or her desire for the decedent’s Will to be admitted to probate. Line 2b it is indicated whether the personal representative will serve as Executor, Administrator with Will Annexed, or Administrator. At line 2c the petitioner must indicate whether he or she wants full or limited authority to administer the estate. If limited authority is sought, the executor or administrator will have to petition the court for permission to take certain actions during the probate administration. At line 2d, the petitioner indicates the whether or not a bond is required and the amount of the bond, or if the probate funds will be placed in a blocked account in lieu of bond. Paragraph 3a – c establishes the jurisdiction of the court by indicating the residency and citizenship of the decedent. Paragraph 3d is where a summary of the income and assets of the estate appears. Paragraph 3.e discusses more information about the bond. Paragraph 3f indicates whether the decedent died intestate or if he or she had a Will. Paragraphs 3g – h discusses the appointment of the personal representative. Paragraph 3h.5 indicates the family members who survived the decedent. Paragraph 3h.6 is completed if the decedent is survived by a spouse but has no issue or is not survived by a spouse. Paragraph 3h.7 is completed only if the decedent is not survived by a spouse or issue. On the last page of the petition, the petitioner lists the names, age, and address of all the relatives of the decedent plus the names, age, and address of any other beneficiaries named in the Will.
Once the petition is completed, it is filed with the court. The original Will is also lodged with the court at that time. The court clerk will assign a date for the first hearing. At the first hearing, the judge will review the documentation submitted and if all is in order, he or she will appoint the executor or administrator and order that Letters Testamentary or Letters of Administration be issued.
Gathering Assets and Information
The Executor or Administrator will then take the Letters to the banks, brokerage houses and other financial institutions to gather the assets of the decedent and place them in an estate account. The Letters can also be used to list any real property that needs to be sold. The Executor or Administrator will need to get a Tax Identification Number for the estate, which will be used with the estate account. The Executor or Administrator will also gather all the information he or she has obtained regarding the creditors all known creditors of the decedent and send notices to all the creditors. The creditors would then have four months to file a claim with the probate court. If a creditor does not file a claim within the designated time, his or her claim is forfeited. Once a claim is filed with the probate court, the Executor or Administrator can accept the claim, denied the claim, or partially accept and partially deny the claim. If a claim is denied or partially denied, the creditor has 90 days to bring an action in the civil court to collect on that claim.
Preparing the Inventory and Appraisal
The next step is the preparation of the inventory and appraisal. The Executor or Administrator will prepare page 1 of the Inventory, which lists all cash assets in the estate, such as bank accounts, savings accounts, money market accounts and certificates of deposit. Page 2 of the Inventory and Appraisal must be prepared by the Probate Referee. The Probate Referee is a court appointed appraiser and he or she will value the stocks, bonds, mutual funds, real estate, and any other assets that fluctuate in value. Once the Inventory and Appraisal is completed, it needs to be filed with the court. Failure to file the Inventory and Appraisal will result in the issuance of an OSC hearing, and potential sanctions against the Executor or Administrator.
In our next blog post on probate proceedings, we will discuss the sale of assets during a probate administration, the preparation of the Final Report and Account, and the distribution of assets from the estate to the beneficiaries.
Probate Lawyers Have The Information You Need
If you need assistance with a probate proceeding in Riverside County or San Bernardino County, call us at 951-888-1460 to schedule an appointment with one of our Probate Attorneys or visit our website. If you are a beneficiary of an estate being administered in the Riverside Probate Court or San Bernardino Probate Court and do not believe it is being properly administered, give our office a call to schedule a consultation with one of our Probate Lawyers.
Have a question? Ask Dennis.
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