A will is a last wish of the deceased in writing to distribute his assets in a manner described in the will. An individual 18 or more years of age who is of sound mind may make a will.
The following parties are necessary to a will in addition to person who is giving a will:
- A testator who he requires a will
- Two witnesses to sign on the will
Name of the Executor who will execute the will after the death of the person making a will. That person or persons does not have to be a California or United States citizen or resident, the executor may also be a bank or trust.
Probate means a process through which the Probate Court of the district distribute the property of a deceased based on his will or intestate property to the appropriate survivors.
- The process involves an appointment of a person or an administrator to take care of the decedent's assets and pay the bills to the creditors, or debts owed by the deceased, taxes to be paid to the Government at the time of his death.
- The probate law of California provides that a probate is not necessary if the total value at the time of death of the assets excluding vehicles and few other assets, which are subject to probate, does not exceed the sum of $100,000.
If there is no will assets may be sold first to meet out all the aforementioned dues then the executor or administrator must distribute the remaining assets in accordance with the decedent's will or the rules of intestate succession.
APPOINTMENT OF ADMINISTRATOR OF PERSONAL REPRESENTATIVE
The probate court appoints administrator or personal representative in the absence of a will or if no name has been mentioned in a will.
A person is appointed as adimistrator if he is 18 years or above and a resident of U.S.
The priority may be given in the following order at the time of appointment of administrator or personal representative:
- Surviving Spouse
- Brothers and sisters (not stepbrothers and stepsisters)
- Children of brothers and sisters
- Issue of grandparents (aunts and uncles first, then cousins)
- Children of a predeceased spouse
- Other children of a predeceased spouse
- Other next of kin
- Parents of a predeceased spouse
- Issue of parents of a predeceased spouse
- Conservator or guardian of the estate acting in that capacity at the time of death who has filed a first account and is not acting as conservator or guardian for any other person
- Public Administrator
Any other person (neighbors, friends, other non-relatives)
- The petition for probate may be filed with the Probate Court in the district.
- After filing of the petition the notice of the court hearing must be published, three times in a local newspaper or mailed at least 15 days prior to the hearing to everyone named in the will.
At the court hearing if there are no objections, the court will admit the will to probate and appoint the executor or administrator.
THIS PROCESS TAKES ABOUT 4-6 WEEKS
- The executor or administrator shall file a form titled as "letters testamentary" or "letters of administration" immediately after appointment.
- The court also appoints a "California Probate Referee" for the purpose of valuing the non-cash items as per the fair market values.
- The executor on appointment takes possession of all of the decedent's assets subject to the probate process.
- The executor then prepares the inventory and appraisal and sends to probate referee for valuation.
- The executor then gives notices to the known creditors and accepts or rejects claims of the creditor.
- The executor thereafter files returns, and pay the debt, if required may sell the property to meet the expenses and debts.
Thereafter the executor files petition for the accounting and for final distribution of the property.
THIS PROCESS TAKES ABOUT 4 MONTHS TO 18 MONTHS TO COMPLETE
- The executor then mails 15 days prior notices to the interested persons to come on the hearing date so fixed upon filing the accounting and for final distribution of the property.
- On the date of hearing the judge finally signs the judgment of the final distribution.
- Upon judgment to distribute the asset the assets finally distributed and if there is any real estate involves then the judgment has to be recorded and the executor then file receipt on distribution or Income tax returns (if required) and then file the declaration for final discharge with the court.
Where distribution for final discharge is filed the court discharges the case.
THIS PROCESS TAKES ABOUT 4-6 WEEKS TO COMPLETE.