Introduction to California Probate – Part 3
As discussed in Part 2 of this series, by filing the Petition for Probate, a formal proceeding will commence. So then, what happens next?
- If you’ve retained a Probate Attorney, he or she will take on some preliminary administrative tasks to ensure that the proposed personal representative (e.g. an Executor or Administrator as dictated by the circumstances), is successfully appointed at the scheduled hearing.
- If you’ve not retained a Probate Attorney, or if the preliminary tasks discussed herein are not properly completed, the hearing will generally be continued and the Probate delayed.
The following is a brief overview of those oh-so-important 'Pre-Hearing' tasks, generally.
One of the first, and the most important pre-hearing tasks is to provide notice to all interested, or potentially interested parties. Who is entitled to Notice? A Testate Administration (by Will), requires Notice to any person, or entity, which is named in the Will, and to any heir-at-law as well (even if not named in the Will). Intestate Administration (when no Will was created), requires Notice to all of the Decedent’s heirs-at-law. Additionally, if a beneficiary of a Will, or intestate heir is a citizen of a foreign country, then notice must be given to a recognized diplomatic or consular official of the foreign country.
What Type of Notice? In a formal Probate there are two types required to be given before the first hearing: (1) Notice of Hearing, and (2) Notice of Petition to Administer Estate. These are both Judicial Council Forms.
1. Notice of Hearing
At least 15 days before the hearing, Notice of Hearing must be given to all those entitled. According to Probate Code section 1220, this notice can be satisfied by mailing or by personal service. It’s always good practice to mail a copy of the Petition, along with the Notice of Hearing to those entitled, and also to file a Proof of Service with the Court well in advance of the hearing date.
2. Notice of Petition to Administer Estate
In addition to Notice of Hearing, Notice by Publication is also required. This is accomplished using a Notice of Petition to Administer Estate. This second notice, in addition to being served personally or by mail, must be published in a Newspaper of General Circulation in the City and/or County where the Decedent resided. Probate Code section 19040 provides very specific publication rules, and proof of publication must be filed with the Court in advance of the hearing. A well-practiced Probate Attorney should know how to minimize publication costs and ensure notice requirements are satisfied to prevent delays in administration.
Depending on the circumstances, the Executor or Administrator may be required to post a bond before receiving Court appointed authority to administer the Estate. The purpose of the bond is to protect the beneficiaries’ and the heirs’ interests from possible malfeasance by the Executor or Administrator. Unless waived by the Decedent’s Will, or waived by all heirs, a bond may be necessary to administer the Estate, and it can be quite expensive to obtain depending on the value of the Estate and how credit-worthy the Executor of Administrator is. Bond fees can range from 0.5% to 2% of the value of the Estate. For a $500,000 Estate the fee for a Bond could be as much as $10,000.
If a bond is not posted, and not waived by either the Will or all heirs-at-law, the Executor or Administrator (in lieu of posting bond) may have the option to place a considerable sum of money in a Blocked Account for the duration of the administration. However, it’s rare for Executors and Administrators to have considerable liquid assets readily available to place into a blocked account, and obtaining bond waivers is generally preferred.
Lodging the Will, if Any
If the Decedent left a Will, the custodian of that Will (meaning the person in possession of the Will) must lodge the instrument with the Court. How is a Will Lodged? To Lodge the Will, it must be filed with the Court; however, only an original wet-ink copy is acceptable. If the original Will cannot be located, a presumption at law is created that the Will was revoked or destroyed by the Decedent. If that presumption is not successfully rebutted in the Probate Petition, an Executor cannot be appointed, and the Will cannot be admitted to Probate.
Probate Calendar Notes
In advance of the scheduled hearing date, the Probate Court’s examiner will generally post Probate Calendar Notes. The notes will include defects identified in the Probate Petition, if any, and if none a recommendation for approval. Any defects identified must be cleared before the hearing, or the appointment cannot take place and the administration will be delayed. To clear the notes, a Response must be filed with the Court and conform to local rules.
If all preliminary tasks have been completed properly, and in advance of the hearing, then the Executor or Administrator’s appointment will likely take place as planned. Although it’s not uncommon for interested persons to appear unannounced at the hearing and raise an objection. Sometimes the objections are completely unforeseeable, and sometimes they are suspected but still surprising. Regardless, a well-practiced Probate Attorney will prepare for the hearing, and minimize delay no matter what occurs.