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Estate Planning Fundamentals

PROBATE OVERVIEW

Probate refers to the court process where a judge (i) appoints a person in charge (called "executor," "administrator," or "personal representative") of a decedent's assets, (ii) oversees the administration of the assets, (iii) ensures creditors (if any) are paid; and (iv) approves a distribution of the assets to beneficiaries or heirs. Probate is expensive (fees are charged based on the value of the estate), public (all documents in a probate are filed in a court and become part of the public record), and it takes a long time (generally, at least a year). Because it is expensive, public, and inefficient, most Generally speaking, most people desire to avoid probate. There are, however, some situations where probate may be necessary or advisable.

 

THE PROBATE PROCESS

The probate process can be broken down into five distinct segments.

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(1) Initial Petition (45-60 days).

The probate process begins with the preparation and filing of a petition in the appropriate court. This petition requests the appointment of a personal representative for the estate: an executor if there is a will or an administrator if there is none.

  • Notice Requirements: Notice of the petition must be served on all individuals entitled to notice and published in an adjudicated newspaper.

  • Hearing Schedule: After filing, a hearing is generally scheduled within 45 to 60 days.

  • Statutory Compliance: Failure to meet statutory requirements before the hearing (e.g., proper notice or publication) may result in the hearing being postponed.

  • Court Approval: If all requirements are met and no objections are raised, the court grants the petition, issues an order for probate, and provides letters testamentary, authorizing the representative to act on behalf of the decedent's estate.

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(2) Creditor Notice Period (4 months). 

Once appointed, the estate representative must notify all creditors of the decedent, including financial institutions, medical providers, utilities, and any other entities to whom the decedent owed money.

  • Creditors’ Claim Period: Creditors generally have four months from the issuance of letters testamentary to file a claim with the probate court.

  • Extended Deadlines: Failure to serve proper notice to creditors extends this filing period.

  • Restrictions: Until the creditor notice period expires, the representative cannot file paperwork to close the estate.

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(3) Marshaling Estate Assets (2-6 months).

The personal representative must locate, secure, and manage the decedent’s assets. This stage often varies in complexity depending on the nature and quantity of the assets.

  • Authority to Act: Letters issued by the court empower the representative to access and manage assets.

  • Inventory and Appraisal: Non-cash assets must be inventoried and appraised by a court-appointed probate referee.

  • Tax Obligations: The representative must evaluate whether state and federal tax returns for the decedent are required.

  • Asset Sales: If the estate requires liquidation of assets, the representative must comply with legal procedures and retain proceeds in an estate account until the court authorizes distribution

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(4) Accounting and Final Petition (2-4 months).

After addressing creditors and marshaling assets, the representative prepares and files an accounting and final petition with the court.

  • Accounting Requirements: The accounting provides a detailed record of all transactions made by the representative since appointment. This must comply with specific Probate Code guidelines.

  • Final Petition: This document outlines the proposed distribution of the estate’s assets and provides additional information required by the court.

  • Hearing Schedule: Once filed, the court sets a hearing, typically within two to four months. If no objections are raised, the court approves the petition and issues an order of distribution.

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(5) Distribution and Discharge (2-4 weeks).

The final phase of the probate process involves distributing assets to beneficiaries and obtaining a discharge order from the court.

  • Asset Distribution: The representative distributes assets as ordered by the court. Beneficiaries must provide signed receipts as proof of distribution.

  • Court Discharge: The receipts are filed with the court, and the representative requests an order of discharge, formally ending their duties.​

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The timeframes are estimates only. Circumstances in a particular case may require more time and effort before a probate can be accomplished.

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OUR ADDRESS

1341 East Chapman, Orange, CA 92866

Email: contact@halesfirm.com
Tel: 714-771-7671  or,

Tel: 949-753-0029

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