Overview of Initial Steps for Opening Probate Administration
After the passing of a loved one family members are often in need of legal representation to open probate administration. If the Decedent executed a Will prior to their passing which has not been revoked it will need to be filed with the Superior Court in the County where the Decedent resided at his time of death. (Cal Prob Code § 8200) If you have been entrusted with safeguarding the Will you are required to file the original Will with the Superior Court within 30 days of the Decedent’s passing and mail a copy to the named executor. (Cal Prob Code § 8200) If you fail to file the Will in a timely manner you may be liable for any damages caused to the Estate. (Cal Prob Code § 8200) The Superior Court will charge you a fee of approximately $100 to file the original Will but you will be reimbursed from the Estate by the Executor/Administrator. (Cal Prob Code § 8200, Cal Gov Code § 70626 – https://codes.findlaw.com/ca/government-code/gov-sect-70626.html; https://www.occourts.org/general-public/fee-schedule/#probate)
In addition to safeguarding and properly filing a Will with the Superior Court, if you are named as an Executor of the Will or are another interested party you may file a Petition for Probate and seek to be appointed as the Executor and/or Administrator of the Estate. (Cal Prob Code § 8000) You may obtain the necessary forms from the State of California Judicial Branch Website at https://www.courts.ca.gov/forms.htm. In order to file a Petition for Probate and the other required forms you will need to pay the Superior Court’s required filing Fee. In Orange County and/or Los Angeles County the required fee is $435. (GC 70650(a), 70602.5 & 70602.6; http://www.lacourt.org/forms/pdf/fees/fee-schedule-2019.pdf
Once the Petition for Probate and all other required forms are filed the Court will hold a hearing where any interested person may object your appointment as the Executor and/or Administrator. (Cal Prob Code § 8004; https://law.justia.com/codes/california/2015/code-prob/division-7/part-2/chapter-1/section-8004) The Court will determine whether you are entitled to Letters Testamentary or Letters of Administration, the requirement for and the amount of any Bond and/or any limitations on the powers of the Executor or Administrator. Once you are appointed and the Court issues an Order for Probate you will be legally responsible and will also be liable for the proper management of the Estate which will include tasks such as marshalling the decedent’s assets, payment of funeral expenses, payment for expenses of last illness, payment and/or rejection of any creditor’s claims, payment of administration expenses, payment for any taxes owed by the decedent and any other matter which arises and concerns the decedent or the Estate.
If there are challenges to the Will or the Decedent’s capacity to execute the Will (Cal Prob Code § 811) an evidentiary hearing and/or trial will be needed to determine the disputed matters. (Cal Prob Code § 8252) Probate litigation is similar to a civil litigation matter in that both parties will be given the opportunity to conduct discovery and/or file any preliminary motions, the main difference is that probate litigation is decided by a judge rather than a jury. (Cal Prob Code § 825)
If you are facing any probate related matter you may contact the Law Office of Sam Walker for a free consultation by filing out the contact form located on our website.