Understanding the Probate Process

Probate is a legal procedure that occurs after someone passes away. It involves proving in court that a deceased person's will is valid or, in the absence of a will, appointing an appropriate individual to manage the estate, identifying and inventorying the dead person's property, appraising the property, paying debts and taxes, and distributing the proceeds.

1. Initiating Probate

Start at Court: The process begins by filing a Probate Petition.

Distribute Notices: After submitting the petition, notify all heirs and beneficiaries and publish a notice in a local newspaper.

2. Court Proceedings

First Hearing: This typically occurs about five weeks after submitting the Probate Petition.

Issuing Bonds: The court may require bonds as insurance against mismanagement of the estate.

3. Responsibilities of the Personal Representative

Submit the "Responsibilities and Liabilities of Personal Representative" document to the court.

Obtain the "Order for Probate" and "Letters" from the court, which empower them to manage the estate.

4. Managing Estate Affairs

Asset Collection: The Personal Representative gathers and secures all assets, potentially starting escrow closures.

Notifying Creditors: Send out notices to known creditors, who have four months to claim.

5. Property and Finances

Handling Real Estate: If applicable, handle the sale of properties.

Inventory & Appraisal: Submit this form, typically by a Probate Referee, between the fourth and sixth months.

Filing Ownership Change Forms: Necessary paperwork for real property ownership changes.

6. Debt Settlement and Tax Payments

Repaying Debts: This includes settling outstanding debts like credit card bills or other obligations.

Tax Responsibilities: Paying necessary taxes is a critical step in this period.

7. Finalizing the Probate

Petition for Distribution: File this between the eighth and twelfth months.

Final Court Appearance: This generally happens between the ninth and twelfth months, leading to the distribution of assets to heirs.

8. Understanding the Role of Personal Representative

The court appoints this individual, who could be named in the will or selected based on a priority sequence defined in the California Probate Code.

9. Identifying Assets Subject to Probate

Not all assets require probate; retirement accounts and jointly owned property often bypass this process.

10. The Heggstad Petition

This is a legal remedy for properties intended to be in a living trust but not correctly transferred. It helps include such properties in the trust without undergoing the probate process.

Why Was the Heggstad Petition Created?

The California legislature recognized that some people left their homes out of their trusts, especially after refinancing; they forgot to put it back into the trust. They included a California Probate Code Section 850 provision to address this issue. This law allows for transferring real property (like a house) into a revocable trust even after the trust creator has died, as long as they intended to include that property in the trust.

How Does It Work?

If the property wasn't correctly included in a trust at the time of the owner's death, a Heggstad Petition could be filed. This petition asks the court to recognize that the property was meant to be part of the trust and allow it to be transferred into the trust posthumously. This process helps avoid the longer and more complex probate process, making it easier and quicker to handle the property according to the deceased's wishes.

The Heggstad Petition will delay the sale of the home because it necessitates a court hearing, not to mention the attorney fees that might have been easily avoided by remembering to change the title of the residence back into the living trust following the refinancing.

Bottom Line

As its complexity makes clear, it's essential to seek help when navigating the probate process. Please get in touch with a skilled and qualified probate realtor. If you are in the Los Angeles area and are involved with a probate sale, you can contact us for a complimentary consultation. We will walk you through each stage and ensure your journey is quick and easy.