Probate is the legal procedure by which a deceased person’s debts are settled and then the remaining assets of the estate distributed to heirs and beneficiaries. The whole process begins when the executor, named in the decedent’s will, presents the will for probate in court. It can seem at first glance an intimidating and complex process and sometimes takes several years to reach completion. Despite all that, though, there really are only for major steps or stages. So let’s take a look at those to help you gain some understanding of the probate process in San Diego, California.
Four Major Steps of the Probate Process
Keep in mind that the pertinent laws regarding probate can vary from state to state, so there may be some subtle differences when it comes to the probate process in San Diego, California. Still, the process has this basic shape all across the board.
1. FILING PETITION AND GIVING NOTICE TO BENEFICIARIES
According to LegalZoom, “the probate process begins with the filing of the petition with the probate court to either (1) admit the will to probate and appoint the executor or (2) if there is no will, appoint an administrator of the estate. Generally, notice of the court hearing regarding the petition must be provided to all the decedent’s heirs and beneficiaries.”
In addition, if an heir/beneficiary objects to the petition, she will have the opportunity to raise this objection in court. That’s why notice of the hearing is typically published in the local newspaper, as well as to notify creditors before this legal proceeding begins.
2. GIVING NOTICE TO CREDITORS AND INVENTORYING ESTATE PROPERTY
In the next part of the probate process in San Diego, California, the personal representative/executor gives written notice, in accordance with state law, to any creditors who may wish to make a claim against the estate’s assets. Creditors must make a claim within the state-specified period of time.
Next, all the estate’s assets are inventoried. This would include probate property such as stocks, bonds, real property, business interests, valuables, and cash. Often, an independent appraiser is hired for the purpose of arriving at an accurate valuation of all non-cash assets.
3. PAYING EXPENSES, DEBTS, AND TAXES
After the estate’s total value has been determined by the inventory, the executor, usually in conjunction with the court, must determine which creditors’ claims are legitimate and then pay those, as well as other final bills like funeral expenses and attorney fees. Sometimes, estate assets, such as real estate, must be sold in order to satisfy the decedent’s obligations.
4. DISTRIBUTING ASSETS TO HEIRS AND BENEFICIARIES
“Following the waiting period to allow creditors to file claims against the estate, and all approved claims and bills are paid, generally, the personal representative petitions the court for the authority to transfer the assets to beneficiaries as directed in the decedent’s last will and testament” (LegalZoom). After this petition has been granted by the court, “the personal representative may draw up new deeds for property, transfer stocks, liquidate assets and transfer property to the appropriate recipients” (LegalZoom).
Selling Real Property as Part of the Probate Process in San Diego,California
There may be only these four basic steps, but things bet a little more complicated when real estate must be sold to satisfy creditors or so that proceeds can be distributed to beneficiaries. This part of the probate process usually runs like this, requiring you to:
RETAIN AN ATTORNEY
A probate sale involves a good amount of court oversight, so you will need to retain a probate attorney to guide you through the complex process.
CALCULATE PROPERTY VALUE
Before listing the property for sale, you will have to have it appraised to determine fair market value. A probate real estate agent can perform a comparative analysis for this purpose. (Just call (858) 444-5973 to discover more about this part of the process.)
SECURE COURT PERMISSION
Most states, require you to get probate court approval before you can list and sell the property. The exact procedure and form vary from state to state, but the basic requirement remains.
LIST FOR AUCTION
In many probate property sales, the next step is to select a reputable auction company – one that is fully licensed as both an auctioneer and a real estate agent or broker.
GET CONTRACTED SALE APPROVAL
After you receive an offer or bid, you will then have to get court approval in order to finalize the sale. In most of these cases, the sale price has to be somewhere around 75% of the recorded value.
Independent of Dependent Administration Rights
According to HomeLight, “if you as the executor have been granted independent administration rights, the probate property sale proceeds much in the same way as a traditional property sale. You have the freedom to set the list price, list the property on your timeline, and accept an offer without interference from the probate court.”
But if you, the executor, have been granted dependent administration rights, everything gets more complex and more drawn out. Court oversight in this instance will include an additional hearing known as a “court confirmation hearing.”
Prior to this hearing, you will have to hire a probate agent who will list the property at not less than 90% of fair market value. Then, when you get an offer, it has to go before the probate court for confirmation. Some states even require you to “remarket the property for 30 to 45 days at that accepted offer price before presenting the offer to the court” (HomeLight). And at the confirmation hearing, the judge won’t necessarily confirm an accepted offer, but may entertain higher offers from buyers at the hearing.
So it is possible to understand the probate process in San Diego, California. Even so, a probate agent is usually needed for the sale of probate property – unless you don’t mind running the risk of getting in legal trouble.