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California Probate Law

California Probate Law Explained – Probate With a Will

California probate code - There are specific California probate codes that make sure that the any money, real estate, personal property and other assets are properly distributed to the decedent’s heirs, and that all of the decedent’s creditors are also paid.In California, probate is a legal process for the administration of a deceased person’s estate.  In California Probate Law, the deceased person is referred to as the “decedent.” The Probate process with a will commonly relies on that will as a road-map to distribute the decedent’s person’s property and resolve any claims against the decedent’s estate. The Executor or personal representative interprets the instructions of the decedent set forth in the will with the oversight of the Probate Court. If the decedent’s estate has any significant assets or complexities, most Executors will secure the help and guidance of a Probate Attorney.

There are specific laws that make sure that any money, real estate, personal property and other assets are properly distributed to the decedent’s heirs, and that all of the decedent’s creditors are also paid.

California Probate Law Explained – Probate Without a Will

In situations where the decedent died without a will (“intestate”), California Probate Law generally distributes the estate as follows:

If there is a surviving spouse, that spouse receives:

  • All community property.

As to the decedent’s separate property–if there is any– according to PROBATE CODE SECTION 6400-6414, the surviving spouse shall receive:

  • All of it, if the decedent did not leave any surviving issue1, parent, brother, sister, or issue of a deceased brother or sister.
  • One half of it, if the decedent has only one child or has one deceased child with issue.
  • One half of it, if the decedent leaves no issue but leaves a parent or parents – or leaves their issue or the issue of either of them.
  • One-third of it, if the decedent leaves more than one child, leaves one child and the issue of one or more deceased children, or leaves issue of two or more deceased children.
  • The rest goes first to the decedent’s surviving children or, if any of them are deceased, to the children’s surviving issue.
1 “Issue” means all the lineal descendants of an individual. An adopted individual is a lineal descendant of each of his or her adoptive parents and of all individuals with regard to which each adoptive parent is a lineal descendant. A child conceived prior to the death of a parent but born after the death of the deceased parent is considered to be the surviving issue of the deceased parent for purposes of this title.

If the decedent has no surviving children or deceased children with surviving issue, the rest goes to:

  • The decedent’s parents, if living.
  • The decedent’s brothers and sisters (or their issue if any of them are deceased).
  • General Steps Necessary for Completing a California Probate Process

    The California Probate Process is a “legal process” that begins with a “Petition for Probate” (or “a request”) to open the estate and name a “Personal Representative” (oftentimes called an Executor or Administrator). The Personal Representative will be responsible for the administration of the decedent’s estate, including all property and assets. A “Notice of Administration” is sent to involved parties. Creditors then have a defined amount of time in which to file their claims against the estate from the date of the first publication. If the Executor or Administrator deems creditor’s claims worthy he or she can pay them or may challenge them in court if there are doubts to their authenticity. Next, the Executor or Administrator can distribute any remaining estate assets among any heirs and beneficiaries. Finally, to complete the California Probate Process, a Petition for Discharge is filed, and with the approval of the Probate court, the estate is closed.

    Administering a Probate Sounds Simple – But it is Often Very Complicated

    After reading the short synopsis paragraph above, you might think “Gee, administering a probate sounds simple enough. Piece of cake!” Unfortunately, most probates where there are even modest assets, combined with two or more heirs or beneficiaries there will likely be probate disputes to contend with, tax returns to prepare and file, taxes to pay, and judges in Probate Court to satisfy. Moreover, a significant percentage of probates will morph into a very complicated mess where help will be needed to find a resolution. Probates are complex procedures which are heavily-burdened with a long list of requirements which must be done “just so.” Most people who have been appointed as first-time Executors or Administrators with families of their own, will need some help. Having a Probate Attorney on their team to help guide them through the probate process is a huge advantage. Remember, the probate process will typically drag on for a year or longer.

    A California Probate Attorney Can Be Huge Asset to an Executor or Administrator

    Typically, a California Probate Attorney is hired to help the Executor or Administrator over the course of the probate process. When you have questions or need guidance, your probate attorney can share their knowledge and experience with you when: you find it necessary; when your are overwhelmed; to help you prepare for court appearances; and to stand beside you at mandatory court appearances. Professionals hired to assist Executors and Administrators, including Probate Attorneys, Tax Consultants, Property Appraisers, etc., are paid from the assets of the estate. Taking advantage of expert help in administering a probate will make for a smoother, faster probate with fewer problems and will often result in greater net estate assets that can then be distributed to the estate’s heirs and beneficiaries.

    Southern California Probate Law Attorney can help Personal Representatives

    If you are named as the personal representative to oversee the probate of an estate in Southern California or for any estate related matter, it would be in your best interest to hire an experienced and skilled California Probate Attorney who is well-versed in California Probate Law. Vincent W. Davis & Associates is a long-established Southern California law firm serving clients in Los Angeles, Orange County, Riverside and San Bernardino Counties from seven conveniently located offices

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