When someone passes away, that person has what the law considers an estate. That estate may be properly organized with instruments such as living trusts, wills and the like in place that provide for a smooth transition of any assets to the heirs the person who has died had in mind. In some cases, the estate is not organized or planned, but regardless, many of these situations wind up in probate court. Probate court is a legal system of oversight that provides for the paying of debts, the distribution of assets and ultimately, the closing out of a person’s affairs in a legal sense after he or she passes away.
For many reasons that are valid, probate court is something that people understand should be avoided. One of those reasons is that it can take a long time for a case to pass through the court system and be completed. Generally speaking, assets are not actually distributed until an estate is “closed,” or the court deems the person’s affairs properly organized and handled. As such, “How long does probate take in California?” is an important question to consider.
The best way to obtain answers that could relate to your particular situation is to seek the advice of an experienced probate attorney in California. The Kam Law Firm provides this type of advice to clients as the firm helps to properly plan estates. If you would like to learn more about what you can do to pass your assets to your heirs as efficiently as possible, contact the firm today to schedule a complimentary initial consultation.
In the meantime, please keep these ideas in mind as you think about the best way to proceed with regards to your estate:
What Needs to Be Done?
The first thing to think about when wondering how long probate takes in California involves the steps that need to be taken within the court system after someone dies. Assuming nothing goes wrong and the will is valid, there are several steps involved with every probate case in the state. These include:
- Filing the Petition for Probate – If things have been planned and the person in charge of managing the estate, known as the executor, knows that he or she is performing in this role, that executor will file the Petition for Probate in the county where the person who died, known as the decedent, passed away. When the petition is received, the court will schedule a hearing a few weeks later. If there is no plan or will, a close relative can file the petition.
- Publishing notice – After the petition is filed, the executor or personal representative will need to publish a Notice of Probate in the local newspaper. This person will also need to notify any beneficiaries to the estate or potential heirs as to what is happening. Notice must also be provided to any creditors to the estate.
- Proving the will – At the hearing, the executor will need to “prove” the will, meaning he or she will need to have the court agree that it’s valid and binding. There are basic elements that must be met in order for this to occur, including:
- The author must be of adult age.
- If the will is handwritten, it must be signed by the author.
- If the will is typed, it must also be signed but in the presence of at least two witnesses, who must also sign the will.
- Marshalling assets – When the court finds a will valid, it will issue “Letters Testamentary” that provide the executor with the authority to gather assets and place them in some type of organized system. This usually requires obtaining a tax ID number as well, as taxes may need to be paid on the estate. The executor must also organize any debts owed by the estate and prepare for any tax liability.
- Creditor payments – Creditors who receive notice of a probate case need to file a claim for their debts owed. If that’s done properly, then the executor can pay off these debts and remove those liabilities from the estate.
- Taxes – As mentioned above, some estates will incur both federal and state tax liability, and those need to be paid as well before moving to the final step.
- Closing the estate – When all of this is done, the executor can ask the court to close the estate, and if that happens, assets will be distributed to the heirs named in the will. This concludes the matter.
As stated above, the process described assumes that no surprises arose and that no problems were uncovered before or during the probate process. That’s not always what happens. Anything that does arise can slow the process down, sometimes significantly. Examples of common problems that can arise in a probate case include:
- Mistakes or potential problems with the will
- The lack of a will
- Mistakes made on petitions filed by the executor
- Improper notice
- Failure to notify any creditors
- Claims filed by creditors that are contested
- Challenges to the will issued by would-be beneficiaries
- Waiting to file estate tax returns
Any or all of these problems can lead to delays of months if not longer. In addition, not having a will or any governing instrument adds layers to the probate process, thereby delaying things in its own right. How long probate takes in California can quickly move from months to even longer if a person is not careful about making a plan ahead of time.
So… How Long Does Probate Take in California?
Every local court system is different in terms of how long on average it takes for a probate case to be handled. It all depends on the number of judges available, the availability of other resources and of course the number of cases on the docket at any given time. Generally speaking, an executor is supposed to finish his or her job within a year of filing, but that’s more of a guideline than a requirement given all that can occur. If the estate must file tax returns, then that time is extended to 18 months. According to at least one local court system in California, if problems arise, a probate case can take years to complete.
How to Avoid This Situation
If you have assets that you want to pass to your heirs, you don’t want it to take years for those assets to actually get to them. Fortunately, there are ways to handle this process such that the situation moves much more quickly and efficiently, and in some cases probate court can be avoided altogether. That’s the best–case scenario for when someone passes away, as the decedent’s loved ones have enough to think about and get through during that time.
Clearly, every person’s financial situation is different, which means that every estate is different. That’s why you need to take some time to have an experienced probate attorney review your situation with you so that you can put together an estate plan that works for everyone, and you can have an attorney help your loved ones when you pass away. If you’d like to take that step or at least find out what it would take to put these concerns in the past, contact the Kam Law Firm today to schedule an initial consultation.