Probate Specialists
Outstanding agents, Outstanding results.® Call Now (650)577-9200 (x 200 or 108)

Probate in California

California Probate – Probate in California

If you are currently in a situation where you’ll be dealing with the California state court system in relation to a probate or estate related matter, or if you think that you will be in this kind of situation in the near future, it is important that you hire an attorney that knows the ins and outs of California probate law.

Probate law has to do with the handling of an estate when someone, such as a family member or other loved one, passes away. These are the laws that make sure that the creditors are paid properly and that assets are distributed to the “ heirs,” or the descendant. When you find yourself in a situation where you’ll be dealing with probate law, it’s a good idea to already have in mind what you are going to need to do.

What exactly is Probate? Probate is a legal process that begins with a “petition” (a request) to open the estate and name a personal representative who is responsible for the administration of the deceased’s property. The next step is when an official Notice of Creditors is printed in a local newspaper and Notice of Administration is sent to other involved parties. Creditors then have a set amount of time to file their claims from the first date of publication. Then the personal representative can pay the debt and distribute the remaining estate. Finally, a petition for discharge is filed, and the estate is closed.

While on one hand, this may sound simple, probate law and the handling of estates is in fact a complex system, which presents you with multiple requirements and tasks to be preformed by the personal representative, an experienced attorney and a tax consultant. For example, an estate including only a single house and single bank account that has been left to a single beneficiary will probably be a far easier and quicker process to deal with than an estate containing multiple houses that are located in various states, and that are left to multiple beneficiaries. This becomes especially difficult if an estate includes leaving assets to a minor.

California Probate Codes

In order to get through the California probate process without any hang-ups or snags, you will need to understand how the procedure works. This will allow you to plan ahead, with respect to different tasks that the personal representative handles. If you don’t know much about the probate process, you will want to look for an attorney who does and who can help you with your particular case. You’ll also need to know what a “petition” is, and how it is filed with the court clerk. If your case requires it, you might need to file a formal objection in writing at or before the hearing, which usually means that you have to act fast and get things done quickly, so that you don’t miss important deadlines. Finally, the personal representative, among other things, is responsible for taking the inventory and appraisal of the estate in question, with respect to the probate process. People with experience in matters like these, namely attorneys, often make the process easier and less stressful.

The importance of understanding how probate procedures work is essential to having a successful probate experience. Information explaining the probate process is available to every American citizen through their given state. However, that information is complex and uses a strictly formal language, which makes it very difficult to understand for many people. Deadlines are important factors in the California probate process. If deadlines are not met, your case will most likely be delayed and there will be a greater chance that something could go wrong, which is one of the reasons why it’s a good idea to seek legal help. Another factor of the probate process that can be difficult without the help of an attorney, is the writing of formal letters, to which the personal representative is obligated. There are particular formats that are to be followed in accordance with the State of California; and if they are not, procedures can get held up and end up taking longer than they should or need to.

If you are a “petitioner” and are absent from the country or unable to verify a petition, you should know that your attorney can do it for you. What you can see from this bit of information is that attorneys can help you manage responsibility that the state places on you, so that everything is handled in a legal fashion, and you end up getting all that you deserve and are entitled to. The verifying of petitions, which is only one of the many obligations of the personal representative, is extremely important to the probate process in California, since it is the very action which sets the whole process in motion.

“Reports” and “accounts” in California can be verified by anyone who has that duty, and if there is more than one of them, only one is necessary. This means there may be only one person to take part in these processes, so as to allow them to go through more smoothly. Hiring an attorney is one way to assure such an end. By having an attorney on your side consulting with you in the decision making process, you’ll have a better chance to get through your probate matters with greater ease and less stress, and at the same time receiving all that is due to you.

In California, someone can make a “response or objection” at or before the probate hearing. This is important, because it often means that the personal representative will have to deal with out-of-the-ordinary procedures, which would be difficult and complex without the help of an attorney. The court will either hear this kind of response or object it then and there. They may also call for a “continuance”, in order to set aside time for this in the future, if it looks like it may be an issue that will require more time to resolve than the court has available. When such is the case, you’re best off with an attorney, who will make sure that matters are handled as you wish them to be.

Requests for continuances are not acknowledged in California as objections or responses themselves; nor are those requests that are made outside of the time limit set by the state. This is important for a number of reasons. First off, if you need to file a formal objection or response, you’ll need to be aware of these deadlines, so that you have your documentation in on time. Secondly, if you’re a personal representative and someone is going to present a formal objection or response at your probate hearing, you’ll need to know how it should be handled, which is another reason why hiring an attorney makes probate much easier.

In California, the “guardian” or “conservator” has 90 days to present the court clerk with an inventory that includes a “true statement” of the estate of the “conservatee”. This oath must be endorsed, in order for the probate process to move onward. Attorneys often help guardians in cases such as these, given that attorneys are familiar with this process and know reputable appraisers. The formality of this documentation sometimes makes it difficult for people who don’t have much experience in the law to handle it on their own.

The inventory that is to be included on this list must be appraised as is provided by the State of California, with respect to estates and decedents. That means anyone who needs to write up such an inventory will need to know the format that California has designed. For this reason, many people find it helpful to have legal consultation throughout the process. Attorneys with experience in matters such as these are beneficial to you and the success of your efforts.

As you can see, handling Probate laws is not an easy thing to go through or deal with, which is one of the many reasons why it’s often a good idea to hire an attorney experienced in the field of California probate law to help you with the matter. Having an attorney on your side will help you make sure that the estate and assets of your loved one’s particular case are handled in a proper and legal fashion.

What are the steps in the process to probate a decedent's estate?

Step 1
In most cases, the person requesting appointment as personal representative (executor or administrator) hires an experienced probate lawyer to prepare and file a Petition for Probate. In some cases, the person requesting appointment will handle the probate without hiring a lawyer, as discussed above.

Step 2
The probate lawyer, or the petitioner without a lawyer, arranges to mail notice to everyone named in the decedent’s Will (when there is a Will) and all his/her legal heirs about the death and the probate hearing. The notice must also be published in the newspaper where the decedent lived to let creditors know about the hearing. Notice gives everyone notified an opportunity to object to admitting the Will and to the appointment of the personal representative.

Step 3
The hearing usually takes place several weeks after the matter is filed. The purpose of the hearing is to determine the validity of the Will and to appoint the personal representative. Sometimes, the Court will need the people who witnessed the decedent’s signature on the Will to sign a declaration. If there are no objections, the court will approve the petition and appoint the personal representative.

Step 4
The personal representative must identify, take possession of, and manage the probate assets until all debts have been paid and tax returns filed. This process usually takes about a year. Depending on the terms of the Will (if there is a Will), and on the amount of the decedent’s debts, the personal representative may have to sell real estate, securities or other property. For example, if the Will makes cash gifts but the estate consists mostly of valuable artwork, the art may have to be appraised and sold to produce cash. Or, if there are unpaid debts, the personal representative may have to sell some of the estate property to pay them.

Step 5
After paying the debts and taxes, the personal representative must file a report with the court. The report accounts for all income received and payments made on behalf of the estate. The judge will then authorize the personal representative to divide the remaining property among the people or organizations named in the Will.

Step 6
The property will be transferred to its new owners.

Source : County of Alameda, Probate Court

What Type of Estate and Tax Planning Do I Need to Do?

Source : Susan Johnston | U.S.News & World Report LP – Mon, Feb 27, 2012..

More than half of adults do not have a will, according to a 2011 phone survey conducted by Harris Interactive for online legal service Rocket Lawyer, and 92 percent of adults under age 35 do not have one.

Many people assume their family will automatically inherit any assets they leave behind, but without a will, those assets are usually held in probate court and distributed according to their state’s law. “The price that your family pays financially and emotionally to go through the probate court is much higher [than paying for a will], ” says Danielle Mayoras, an estate planning and elder law attorney, coauthor of Trial & Heirs: Famous Fortune Fights!, and cofounder of the Center for Probate Litigation.

In addition to the distribution of assets, estate planning should also name the people who should make financial or medical decisions on your behalf should you become incapacitated. Here are the three main documents experts recommend:

– Will: Experts recommend creating a will as soon as you start acquiring assets or start a family. Assets can be left outright to beneficiaries or through a trust, which is explained below. A will also names executors, who manage the assets until they’re distributed to inheritors. A digital executor (who could be the same person managing your assets or a different person) would have the authority to manage your online accounts after you die.

If you have children, your will should designate guardians in case both parents pass away. “You want to name a guardian who really has the ability and life expectancy to survive the youngest child to the age of 18,” says Russell Fishkind, a trust and estate lawyer and professor of estate planning in New York University’s Certificate in Financial Planning program.

Durable power of attorney: This document grants your spouse or other party the power to make financial or legal decisions on your behalf if you become incapacitated, which Charley Moore, a lawyer and founder and chairman of Rocket Lawyer, refers to as “the vice president rule.”

– Healthcare proxy: Also called healthcare power of attorney, a healthcare proxy grants the power to make medical decisions, including end-of-life decisions if you are incapacitated and unable to communicate those decisions yourself. Without a healthcare proxy, family members could make some healthcare decisions depending on the state. “But there will be the considerable cost of going to court and the related legal matters that arise from that,” adds Jonathan Blattmachr, a former estate planning attorney and a director at wealth advisory firm Eagle River Advisors. “Also, determining you are incompetent will be a matter of public record.”

In some cases, it may make sense to create a trust for your assets instead of leaving them outright, because trusts offer more control over who receives your money and the way in which they receive it. For instance, if you left money outright to a spouse who later remarried, that money could flow through the second marriage and may or may not find its way to your children.

Various types of trusts accomplish different goals. A QTIP (Qualified Terminable Interest Property) trust, also called a marital QTIP trust, provides for the marital deduction and ensures that a spouse cannot use assets to benefit a future spouse or nonmarital children. A special needs trust provides for a special needs child without jeopardizing his or her access to government benefits, while an age-terminating trust for minor children would distribute portions of the inheritance at predetermined ages. A pet trust would provide care for your pets after you die.

Trusts have other benefits, as Blattmachr points out. “Money that’s in trust that someone else put there can be made completely immunized from creditors,” he says. By avoiding probate court, trusts also provide greater privacy.

However, a trust only benefits your estate if you actually transfer assets into it. According to Mayoras, failure to transfer all assets was one of the issues with the Michael Jackson estate and is a common estate planning mistake.

As you age and perhaps divorce and remarry, it’s also important to keep your beneficiaries updated. Otherwise, an ex-spouse could have the power to make life-altering healthcare decisions or receive an inheritance. As children reach majority, trusts should be updated to remove age-terminating trusts as appropriate.

Estate tax is another faucet of estate planning, which is further complicated by fluctuations in the estate tax exemption. Currently, the federal exemption is $5.12 million, but it’s scheduled to reset to $1 million in 2013. For those whose assets exceed the exemption, here are a few strategies for minimizing estate taxes:

Set up specialized trusts. Certain types of trusts can minimize estate tax. For instance, under a GRAT (grantor retained annuity trust), you would receive an annuity for a fixed number of years. “If the individual lives until the annuity payments end, anything that passes to successor beneficiaries will be gift and estate-tax free,” says Blattmachr. “The GRAT will be ‘successful’ if the property owner lives until the annuity term ends and if the trust property has gone faster than the IRS has forecast.” However, the benefits of GRATs and other specialized types of trusts may restricted in the future. A charitable remainder trust, where money is distributed to heirs for a period of time and then to a charity, is another option for tax savings.

-Transfer over time. Instead of waiting until you die, you could transfer assets or property gradually to reduce the estate tax liability. For instance, if you wanted to leave a vacation home to your two children, Sara Robicheaux, dean of business programs and associate professor of finance at Birmingham-Southern College, says, “you could essentially break it up into shares and give away 1/20 to each child each year, and over 10 years, the entire ownership shifts to the children.”

– Pay educational or medical costs. In addition to gifting up to $13,000 ($26,000 if you’re married) in cash or property without tax implications, you can also distribute assets by paying the tuition (not room and board) or healthcare costs of someone else. “If, for instance, you have a grandson who’s going to medical school, grandma or grandpa can pay that and it won’t be considered a taxable gift,” explains Blattmachr. Be sure to discuss that option with your financial planner to ensure that you won’t need that money later.

-Move to a different state. Several states have their own estate tax, and the exemption is often lower than the federal exemption. For instance, it’s currently $675,000 in New Jersey, so that would impact smaller estates. These can also fluctuate, according to Blattmachr, but if you’re living in a state with high estate tax, he says it’s worth considering a move before you die.

Although several websites offer templates for creating a will and other legal documents, the experts who spoke to U.S. News recommend hiring a professional to avoid mistakes while navigating complex estate laws that vary by state. (Rocket Lawyer, mentioned earlier, offers a hybrid model by combining online tools with referrals to lawyers to review legal documents.)

Mayoras says she’s had people come to her office with wills or trusts that weren’t created correctly. “If you don’t use an attorney who specializes in this area, you’re losing a lot of possibilities that you would otherwise have,” she adds. “What if there isn’t an estate tax situation? What happens if your children pass away? There’s a lot of what-ifs, and there’s no way checking boxes on a form is going to account for that.”

Administering the Probate Estate-Closing and Distributing the Probate Estate

1.When can I close the estate and distribute the assets?
A final account and petition for distribution can be filed by the Personal Representative when there are sufficient funds available to pay all debts and taxes, the time for filing creditors’ claims has expired, and the estate is in a condition to be closed.

The Personal Representative is required to file a petition for final distribution or a verified report on the status of the estate within one year after Letters are issued (or 18 months if a federal estate tax return is required).

2.What must I do to close the estate?
The Personal Representative must file a final account, report and petition for final distribution, have the petition set for hearing, give notice of the hearing to interested persons, and obtain a court order approving the final distribution.

If the Personal Representative wants to receive compensation for his or her services, a petition for fees should also be included in the petition for final distribution.

A final account does not have to be filed if all the persons entitled to distribution of the estate sign a written waiver of account or a written acknowledgment of receipt of their share of the estate.

3.Does a status report need to be filed?
If the estate cannot be closed within one year after issuance of Letters (or 18 months if the estate is required to file a federal estate tax return), the Personal Representative must file a verified report on the status of the estate.

The status report must show the condition of the estate, the reasons why it cannot be closed and distributed (for example, if there is ongoing litigation, or an estate tax audit, or real property that must be sold to pay debts or cash gifts), and the estimated time needed to close the estate.

The status report is set for hearing in the same manner as any other probate petition. A Notice of Hearing
(Form DE-120, Judicial Council) must be sent to persons interested in the estate at least 15 days prior to the hearing.

The Notice of Hearing must include the following statement in not less than 10-point boldface type in substantially the following words:

You have the right to petition for an account under Section 10950 of the California Probate Code.

At the hearing, the court may order that the estate may remain open for such time and on such conditions as the court finds reasonable if it is in the best interests of the estate and the beneficiaries, or the court may order the representative to file a petition for final distribution.

If the representative does not file a status report, anyone interested in the estate may petition the court to obtain a status report, or the court on its own motion may require the report and cite the Personal Representative into court to comply.

Failure of the Personal Representative to comply with the order is grounds to have his or her letters revoked, and the court may also reduce compensation if the time for administration exceeds one year (or 18 months if a federal estate tax return is required).

4.How are fees determined for the personal representative and attorney?
California law allows both a Personal Representative and the attorney for the Personal Representative to take a fee (referred to as a statutory fee) for ordinary services, calculated as a percentage of the appraised value of the estate property. The formula for calculating the fee is as follows, from Probate Code Section 10810:
4% of the first one hundred thousand dollars ($100,000), plus
3% of the next one hundred thousand dollars ($100,000), plus
2% of the next eight hundred thousand dollars ($800,000), plus
1% of the next nine million dollars ($9,000,000), plus
½ of 1% of the next fifteen million dollars ($15,000,000).

For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

If an accounting is filed, the fee base used to calculate the statutory fee also includes income received during administration, plus gains over the appraised value on assets sold during administration, minus any losses from the appraised value on assets sold during administration.

Mortgages or other debt obligations are not considered in computing the fee base.

Disbursements for debts or expenses are not factored into the calculation; neither are unrealized gains or losses (such as for securities that have increased or dropped in value since the date of death), but only if the property is actually sold.

Statutory fees are set by statute and if requested, the Court has no discretion to reduce the amount of fees, unless the Personal Representative has unreasonably delayed the closing of the estate or may be surcharged (penalized) for other estate mismanagement. However, any fee paid to a Personal Representative must be reported on his or her personal income tax return as ordinary income, so the Personal Representative may choose not to take a fee if he or she will be receiving property from the estate as an inheritance (which is not counted as income to the beneficiary).

Also, although the Personal Representative and the attorney for the estate are entitled to the statutory percentage as a fee, the Personal Representative can ask for an amount lower than the statutory percentage, and can also negotiate with the attorney for a reduced fee, particularly if the estate is uncomplicated and has only a few assets of high value (such as a home).

However, any agreement between the Personal Representative and the attorney for higher compensation is void. An attorney who acts both as Personal Representative and as attorney may receive only one fee, unless the court approves the double payment in advance. This also applies to associates or partners of the attorney. Persons acting as co-executors must divide the fee among themselves.

A court order is required before any fees can be paid to either the Personal Representative or the attorney. Reimbursement for expenses advanced by the Personal Representative or the attorney, such as for filing fees, certified copies, or publication costs, may be made without a court order.

Additional compensation, known as an extraordinary fee, may also be paid to the Personal Representative and/or the attorney for the Personal Representative for extraordinary services in an amount that the court determines is just and reasonable.

Some examples of the types of services that are considered extraordinary and for which extraordinary compensation may be awarded are:

•Sales of real property, litigation of claims against the estate,
•Litigation involving estate property, preparation of income and/or
•Estate tax returns and representation before taxing authorities on audits connected with the returns, and will contests. In contrast with statutory fees, payment of extraordinary fees is not guaranteed, and the Court does have discretion to decide whether to allow extra compensation, even when services of an extraordinary nature are rendered.

For example, the Court may consider that the statutory fee calculated on an estate where the only asset was the decedent’s personal residence that was sold for $1 million is reasonable compensation (the statutory fee would be $21,150), even though the sale of real property is considered to be a type of service for which extraordinary compensation may be awarded.

5.Do I have to prepare an accounting?
The Personal Representative is required to file an accounting of the financial transactions that have occurred in the administration of the estate unless all persons entitled to distribution of the estate have signed a written waiver of account or a written acknowledgment that the person has received his or her share of the estate (e.g., a receipt on a preliminary distribution).

A sample form of Waiver of Account is included in this website. If all distributees waive an account, the Personal Representative must still file a report, including the amount of compensation requested by the Personal Representative and/or the attorney and setting forth the basis for computing the fees.

6.How do I prepare an accounting?
All accounts filed with the court must include a financial statement and report of administration according to specific guidelines found at Probate Code sections 1060-1064 and 10900. The account must state the period covered and contain a summary, supported by detailed schedules, showing the following:
•Property on hand at the beginning of the accounting period (i.e., the inventory value of all assets),
•the value of assets received during the accounting period, excluding property listed in an inventory,
•income receipts, excluding receipts from a trade or business,
•net income from a trade or business,
•gains on sales,
•disbursements, excluding disbursements for a trade or business and excluding distribution to beneficiaries,
•losses on sales,
•net losses from a trade or business,
•distributions to beneficiaries, and
•property on hand at the end of the accounting period, listing each asset at its appraised value as shown on the inventory and appraisal (carry value), and its current market value.

A sample Summary of Account form is included in this website.

The financial statement may also include additional schedules required for information purposes under
Probate Code sections 1061 and 1062, if applicable, such as:

•A schedule showing the estimated market value of the assets on hand as of the end of the accounting period,
•A schedule showing purchases or other changes in the form of assets during the period of the accounting (except for transfers of cash between accounts in financial institutions or money market mutual funds),
•A schedule allocating receipts and disbursements between principal and income, if the estate is to be distributed to an income beneficiary,
•A schedule listing income, disbursements and proceeds of sale attributable to specifically devised property,
•A schedule showing the calculation of interest to be paid on specific cash gifts to a beneficiary, if required under Probate Code sections 12003, 12004, 12005 or 16314.
•A schedule showing the proposed distribution of estate assets to beneficiaries, including an allocation between testamentary trusts established under the decedent’s Will or subtrusts created under a revocable living trust established by the decedent during his or her lifetime, and
•A schedule listing any liabilities, including loans which are secured by estate assets, obligations for taxes due but unpaid, notes payable by the estate, judgments for which the estate is liable, or any other material liability (but not liabilities which are recurring expenses such as rent or utility payments).

7.How do I prepare the schedules?
The two most important schedules to be attached to the Summary of Account are the Schedule of Receipts and the Schedule of Disbursements.
Whenever an accounting period exceeds one year, or whenever income is received from any particular source more than twelve times in an accounting period, or whenever payments are disbursed to a particular payee more than twelve times in an accounting period, it’s required that the schedule for receipts for disbursements be categorized into sub schedules reflecting the particular income sources or payees for whom there are more than twelve entries per accounting period. (Local Rule Probate 9.A (3))

The Schedule of Receipts must show the following:
•The nature and purpose of each item;
•The source of the receipt (stock dividend, interest, etc.); and
•The date of the receipt.

Receipts can be listed either chronologically or by category, though you maybe required to list them chronologically within categories as described above and in Local Rule Probate 9.A (3) (such as interest received on various bank accounts, dividends, miscellaneous receipts). You must be careful to list income receipts only or to separate income receipts and principal receipts in separate columns (or list them on separate schedules).

Principal receipts include items such as refund checks, uncashed checks at the decedent’s death, and generally consist of assets that the decedent owned or was entitled to receive as of the date of death, even if not received until after the date of death (such as refunds), while income receipts represent money that is earned by the estate after the date of death on assets belonging to the estate. Principal assets should be listed on an inventory and appraisal.
The total of all income Receipts should be listed on the charges side of the Summary of Account.

Gain or loss is the difference between the gross sales price and the appraised value of the asset, as shown in the inventory and appraisal. Sales of estate assets should be listed on a schedule for Gains on Sales, if the asset was sold for more than its appraised value, or on a schedule for Losses on Sales, if the asset was sold for less than its appraised value.

The schedule should list both the gross sales price and the appraisal value, and show the calculation to reach the net gain or loss. The net difference (the amount gained on the sale or lost on the sale), or the total of all gains and all losses, if multiple assets were sold, should be included in the Summary of Account. The Losses on Sales schedule also lists property included in the inventory that is no longer in the representative’s possession and is not otherwise accounted for. It may include property destroyed by fire or other casualty loss not entirely covered by insurance, or property lost through litigation.

The total of all Gains on Sales should be listed on the charges side of the Summary of Account. The total of all Losses on Sales should be listed on the credits side of the Summary of Account.

Sales of real property are confusing because the representative frequently receives a check in the net amount of the sale, but the money received is not considered to be income, but a sale of a principal asset. The difference between the appraised value of the real property and the gross amount of the sales price should be shown on a Gain on Sales schedule.

If any costs of sale were deducted from the sales price at close of escrow (such as property tax payments, broker’s commissions, recording fees, document preparation fees, etc.), those items should be listed on the Disbursements schedule.

As with receipts, the Schedule of Disbursements may be listed either chronologically by date or categorized by type of disbursement. The chronological schedule generally is preferred since it is easier to tell the status of the estate and what payments the representative made at any particular date. However, note that you may be required to list them chronologically written categories, as described above regarding receipts.

The Schedule of Disbursements must show the following:

•The date of the disbursement;
•The payee (to whom the payment was made);
•The purpose of the disbursement (insurance, real property tax, filing fees, etc.); and
•The amount of the disbursement.

The total of all Disbursements should be included on the credits side of the Summary of Account.

The Schedule of Distributions should include a list of all cash or property that has been distributed to an heir or devisee of the estate through a preliminary distribution. The schedule must include the date and value of the asset distributed at its appraised value.

A Receipt on Distribution should also be signed by the person receiving the property and filed with the court as proof that the property was in fact distributed and received by the person entitled to it.

The total of all Distributions should be included on the credits side of the Summary of Account.

The Schedule of Property on Hand is important because it represents all the property of the estate remaining in the representative’s possession to be distributed. The representative should verify that the property listed on the schedule is actually on hand.

Cash on hand should be verified with the latest bank statement at the end of the accounting period. The description of other (non-cash) property should be described using the same description included in the inventory and appraisal (except that real property can be identified by street address on the Property on Hand Schedule, but the full legal description must be included in the Judgment of Final Distribution).

The property should be identified by the inventory item number (and preferably listed in the same order as the inventory and appraisal for easy verification), and should be listed at the value listed on the inventory and appraisal.

The representative should check the inventory and appraisal against the account schedules, to verify that all assets listed on the inventory and appraisal have been accounted for, either through sale, distribution, or that the asset is listed on the Property on Hand Schedule.

The total of all Property on Hand should be included on the credits side of the Summary of Account at its “carry value”, or inventory value.

Additional schedules may also be required for information purposes under Probate Code sections 1061 and 1062, as listed above. The dollar values of these schedules are not included in the Summary of Account calculations, although the schedules should be listed, if applicable.

In all cases, an additional schedule is required showing the estimated market value of the assets on hand at the end of the accounting period. The market value of assets can be included on a separate schedule or the information can be listed in a separate column in the Property on Hand Schedule.

8.How do I prepare the petition for final distribution?
Before the estate can be closed, the representative must file a Petition for Final Distribution. This generally includes three parts:
•An accounting (unless waivers have been signed by all persons entitled to distribution,
•a report of administration, consisting of a complete summary of the actions taken by the representative in administering the estate, in narrative form, and
•a petition, asking the court to approve the accounting (if filed), approve the distribution of the estate assets, plus any additional matters that require court approval (such as allowing fees to the representative or the attorney).

The petition is prepared in legal pleading format, with a title that describes the contents of the document, for example, First and Final Account and Report of Executor, Petition for Allowance of Statutory Fees and for Final Distribution.

For another example, if waivers of the accounting have been filed and there are no requests for compensation, the document could be titled Waiver of Account and Report of Personal Representative, and Petition for Final Distribution.

A sample form of a Petition for Final Distribution is included in this website. The petition is very comprehensive, and the representative must be careful to include all relevant information about the administration of the estate, the actions taken during administration, the property remaining on hand to be distributed, and the names, addresses and relationships of the beneficiaries who are to receive property.

Even if a full accounting for all receipts and disbursements has been waived, the petition must still include a list of the property remaining on hand for distribution (which must be described in detail, including legal descriptions of real property). The petition must also include a verification.

9.Common errors made in preparing the final account, report and petition for final distribution:
The following is a list of some of the common errors made in preparing the final account, report and petition for final distribution:
•Failure to give notices as required by law.
•Failure to put account in proper form.
◦Summary of account not included in format required by local rules.
◦Incorrect starting figure used.
◦Income received not itemized and source of income not shown.
◦Disbursements not itemized, date of payment, to whom, paid, and for what purpose not shown.
◦Improper credits claimed.

•Failure to describe character of the assets on hand for distribution, i.e., separate, community, or quasi-community property.
•Failure to list and describe all assets on hand for distribution, either in the body of the petition or in an incorporated schedule or attachment, whether or not an account has been waived.
◦Provide legal descriptions and assessor’s parcel numbers for all real property.
◦Reference to property described in the Will or to the inventory and appraisal is insufficient.

•Failure to state specifically the manner in which the estate is to be distributed.
◦Designate intestate heirs and show relationships.
◦State facts pertaining to any disclaimer and their effect.
◦Submit assignments, if any, to the court for review in the format prescribed by the Local Rules of
◦Describe preliminary distributions and date of filing of orders.
◦If the Will refers to fractional or percentage shares for two or more beneficiaries, show the computations and amounts to be distributed to each beneficiary.
◦Track terms of the Will as to disposition of assets; explain abatements, ademptions, or other unusual circumstances.

•Failure to describe creditors’ claims activity and list disposition of all claims.
•Failure in insolvent estates to itemize all creditors’ claims, showing the class to which each belongs, and the proper proration of remaining assets among creditors, or payment of debts for which no claim is filed.
•Failure to include calculation of the statutory compensation of the representative and attorney, whether or not an account is waived.
◦State payments allowed on account of compensation.
◦If account is waived, observe local rules regarding estate to be accounted for in determining fee basis.
◦If multiple representatives or attorneys were involved in estate administration, observe local rules on notice to former representative or attorney of the hearing on the final distribution and appropriate division of fees.

•Failure to include in petition’s caption and request and in notice of hearing references to application when extraordinary fees are requested.
•When distribution is to be made to a testamentary trust, failure to incorporate the terms of the trust in the order of distribution in such a manner as to give effect to the conditions existing at the time distribution is ordered. Failure to state pertinent provisions in the present tense and in the third person instead of quoting the Will verbatim. Written consent of the trustee to act should be on file before the hearing.
•Failure to obtain a Certificate of Franchise Tax Board Clearance if the estate value exceeds 1,000,000 and assets of at least $250,000 & are being distributed to nonresidents.
•Failure to allege whether the representative was acting under the Independent Administration of Estates Act, and to state specifically the transactions undertaken pursuant to the IAEA.
•Failure to set forth disposition of assets if an heir, devisee, or legatee dies before distribution of the estate.
•Failure to comply with provisions of Probate Code sections 11900-11904 on escheat or distribution to missing heir, devisee, or legatee.
•Failure to submit declaration under Probate Code sections 13100-13115 for filing before the hearing on the petition if distribution is to be made pursuant to the hearing.
•Failure to observe local rules on distribution to minors.
◦File Probate Code section 3401 or 3413 declarations before the hearing.
◦If a guardianship of the estate is required, state name of guardian.
◦If funds are to be placed in a blocked account by a custodian, state name and relationship of custodian, and name and location of depository.

•Failure to request establishment of an appropriate closing reserve for unpaid or contingent tax liability, creditors’ claims, or closing costs (for example, certification and recording of final judgment).
•Failure to include an omnibus clause for after-discovered property.
•Failure to submit a proposed Judgment of Final Distribution to the court.

A sample Petition for Final Distribution is included as part of this website. When completed and signed, you will need to obtain a hearing date from the Probate Calendar Clerk and file the Petition with the court.

10.Giving notice of the hearingStep 1
Complete the front side and the top half of the reverse side of the following form:

•Notice of Hearing (Probate) (Form DE-120, Judicial Council)

Step 2
Mail or personally deliver the Notice of Hearing form to each person who is entitled to receive notice at least 15 days before the hearing date. Only the Notice of Hearing must be mailed (except for persons who have filed a Request for Special Notice – they also must be given a copy of the petition), but it is highly recommended that a copy of the petition also be mailed to everyone who receives the Notice of Hearing.

Note: You cannot mail or deliver the papers yourself — ask someone else to do the actual mailing or delivery for you.

Notice must be given to:

•Any nonpetitioning Personal Representative;
•All persons who have requested special notice;
•Each known heir or devisee who is affected by the petition;
•The Attorney General, if any portion of the estate will escheat to the state of California, and its interest would be affected by the petition; and
•Each creditor whose claim is allowed or approved but has not been paid, if the estate is insolvent.

Step 3
Have the person who mailed the Notice of Hearing sign the Proof of Service by Mail on the reverse side of the form. File the original Notice of Hearing with the completed Proof of Service by Mail with the Probate Filing Clerk.

11.Judgment of final distribution
The proposed Judgment of Final Distribution should be submitted to the court at least 10 days prior to the hearing (but preferably at the time the Petition for Final Distribution is filed). The Judgment must follow the contents of the Petition for Final Distribution and should be very specific as to the heirs and beneficiaries who are to receive property from the estate and their percentage or specific interest in each item.

Each asset should be listed in detail, as described in the Inventory and Appraisal. Click to see a sample copy of a Judgment of Final Distribution . After the Judgment has been approved by the judge and signed, at least one certified copy should be obtained, for the Personal Representative’s records and for recording, if the estate included real property.

12.Obtaining and filing receipts
The Personal Representative must obtain the receipt of the persons receiving property from the estate. In the case of real property, the Personal Representative should record a certified copy of the Judgment of Final Distribution in the county in which the real property is located. Recordation of the order is considered to be a Receipt from Distributee for the property.
A sample form of a Receipt from Distributee is included in this website and should be required from each distributee at the time property is distributed to him or her under an order for final distribution. Each receipt should be filed with the court prior to filing a petition for final discharge.

13.How to be discharged from personal liability
Distribution of the estate assets in compliance with the court order entitles the Personal Representative to a full discharge with respect to property included in the order. A decree of discharge protects the Personal Representative from subsequent suit for alleged misdeeds during the term of administration.

Until the entry of an order discharging the Personal Representative, the administration of the estate is not completed, and the court continues to have power over the Personal Representative for the purpose of compelling execution of its orders.
When the Personal Representative has complied with the terms of the Judgment of Final Distribution and has filed the appropriate receipts, the court must, on ex parte petition, make an order discharging the Personal Representative from all liability incurred thereafter. After discharge, the Personal Representative should notify the Internal Revenue Service and the Franchise Tax Board that he or she is no longer acting as fiduciary for the estate.

The Judicial Council form, Ex Parte Petition for Final Discharge and Order (DE-295/GC-395) should be filed with the Clerk’s Office, who will arrange to have the petition submitted to the judge for signature.

Administering the Probate Estate-Paying Debts and Liabilities of the Estate

Administering the Probate Estate-Paying Debts and Liabilities of the Estate

If the terms of your appointment as personal representative include “authority to administer the estate under the Independent Administration of Estates Act” with “full” or “limited” authority (the power will be included on the Letters or the Order for Probate that were filed when you were first appointed), you have a wide range of powers to conduct certain transactions without court supervision, that is, without having to get court approval first.


Administrating the Probate Estate-Taxes

Administrating the Probate Estate-Taxes

An extension of time to file does not extend the time for payment of the estate tax due, which must be requested separately if needed. Separate penalties may also be assessed for late filing and late payment of the tax due, in addition to interest on the late payments.


Administrating the Probate Estate-Creditors' Claim

Administrating the Probate Estate-Creditors’ Claim

As personal representative, you have a duty to notify both known and reasonably ascertainable creditors of the death of the decedent and that you have been appointed as personal representative. This includes not only creditors with outstanding bills such as doctors, credit card companies and utility companies, but also people who may have a potential claim against the decedent on account of something that happened during the decedent’s lifetime.


Administering the Probate Estate-What Happens After Appointment?

Administering the Probate Estate-What Happens After Appointment?

Before an estate checking account can be established or existing accounts can be transferred, the personal representative will need to obtain from the Internal Revenue Service a “Tax Identification Number” for himself or herself as Personal Representative of the decedent’s estate.


Fill out the form to discover how probate specialists can help you immediately.
Property Address:
Receive Free
eNewsletter | Probate Bulletin

  • Archives

    Meet our probate specialists
    7 Reasons to use our service
    Specialists in probate real estate transactions
    Find probate specialists in your areas
    What our clients say about our probate team
    Home  |  Contact Us  |  Disclaimer  |  Site map © 2011 Probate Home for Sale All rights reserved.