Most of us have an idea of what we would like to see happen to our belongings when we die. We would like our favorite niece to receive a special jewel or for our home (usually our most valuable asset) to be passed on to our children. But many of us have no idea how this happens. This article will explain what happens when we die and what happens to our things (the legal term for our things or belongings is our ‘heritage’).
A PLAN
If we have a plan to distribute our belongings, that usually means we have a will or trust. A will is a legal document that lets everyone know who will be the executor of your estate; who should receive your property; and how you want your estate to be managed. A will in California must be witnessed by at least two adults and signed by the person creating the will. It doesn’t have to be long. It does not have to be notarized. Your family members should be able to easily access the original copy of your will after your death. The probate process is the legal procedure for carrying out the wishes that you have stated in your will. Without it, the court will implement its backup plan. A properly valid trust is not required to go through the probate process unless challenged. Also, more informal plans, such as “pay upon death” accounts, do not have to go through an estate.
The petition
Presenting the will to the court is the first step in the probate process. This is done with a petition asking the court to recognize the will as your final wishes. The petition also asks the court to authorize the person you named in the will as your executor to carry out your final wishes. Generally, the person you have appointed as executor will prepare the petition or hire an attorney or legal document preparer to do so. The person requesting the court’s authority is called the petitioner.
The petitioner must identify all members of your immediate family, your spouse who died before you, and all the people you named in your will. The petition must also state your assets, an estimated value of your property, the type of authority that should be given to the potential executor (limited control versus independent control), and if a bond is required. The petition is a court-required form and when completed, it must be sent to the court along with a copy of the will. The original copy of your will must be filed with the court, which is kept on file with the court.
Once the petition is completed and a copy of the will is attached, it is presented to the court with the required filing fee. Currently, the filing fee in California is $ 435 for a legalization petition. Once the fee is paid, the court clerk will set a hearing date for the judge to decide on the petition. The court schedule varies from county to county. Some counties assign short dates within 15 to 20 days, while other courts are so far behind that the petitioner may not get a hearing date for two months. Before the hearing date, the court staff will review the petition and present it to the judge with any questions or comments.
Hearing
Before the judge issues a decision on the petition, a summary of the petition must be published in your local newspaper. In fact, the request must indicate the specific name of the newspaper in which the publication will be published. This publication is necessary to inform potentially interested parties that someone is seeking permission from the court to legalize their estate. This public notice gives anyone the opportunity to come forward and challenge the appointment of the executor or challenge the will itself. Family members and next of kin should receive a separate notice that should be mailed to them directly. Just as the newspaper ad gives the public the opportunity to object, the mailed notices offer family members the same opportunity.
Assuming no objections are raised and all procedural steps (such as notices) have been followed, the judge will grant the probate petition at the hearing and your executor will be officially appointed to manage your estate. It is at this time that an executor’s bond must be filed with the court, if necessary. After the hearing, your executor will receive signed copies of the probate order and letters of appointment. Like the petition, the petitioner is also responsible for preparing these documents for the judge’s signature. Your executor will need these two documents as proof that he is authorized by the court to pay your debts, collect all money owed to him at the time of your death, access all of your bank accounts or brokerage accounts, and take care of your property. . Almost all third parties, such as bank representatives, mortgage companies, title companies, and government officials, will require a copy of the order and letters before releasing any information about their affairs. Your executor will probably need a certified copy of these documents. Certified copies are available from the court clerk for an additional fee.
Once appointed, your executor will not only have control of your estate, but will also be accountable to the court and the beneficiaries for how your estate is managed. In fact, all actions taken during the administration of your estate must ultimately be reported to the court. And some actions, such as selling your home, require giving the beneficiaries and / or the court advance notice of the sale. But most importantly, your executor is responsible for carrying out your final wishes. The best thing you can do to facilitate that is to make sure your will has been properly executed, make sure your loved ones know where the original will is located, and finally make sure your wishes are clearly spelled out. Following these steps will facilitate the process of fulfilling your final wishes.