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When a person dies their estate may need to go through probate. Probate settles debts and distributes the estate to heirs or beneficiaries. If there is a will, the probate court also determines if the will is valid. California probate takes at least nine months and can take more than two years.
If There is a Will
If there is a will, the person in possession of the will has 30 days after the date of death to take a copy of the will to the probate court and send a copy to the executor named in the will.
The executor is the person designated to administer the estate. After the decedent’s debts are settled, the executor must be distributed the remaining property and assets as instructed in the will.
If There is No Will
If there is no will a loved one or another interested party can file a Petition for Letters of Administration, requesting to be appointed as the administrator of the estate.
The administrator has the same basic duties as an executor, but will have to administer the estate according to California’s intestate succession laws. California law determines who the heirs are and how the property is to be divided among them, when there is no will.
Property Which is Not Probated
Certain property does not need to go through probate. Examples include:
Real property which is held by “joint tenants with right of survivorship”
Transfer on death bank accounts
Life insurance with named beneficiaries
All of the above can pass directly to their beneficiaries without the need to wait for the probate process. An important part of estate planning is establishing these types of arrangements before death in order to keep as much property as possible out of probate and insure that loved ones have access to the funds they need as soon as possible.
Spouses and Domestic Partners
The surviving spouse or registered domestic partner can file a petition call a Spousal or Domestic Partner Property Petition. This will result in a court order stating what part of community property belongs to the surviving spouse/partner and what part of the decedent’s share of community and separate property belong to the surviving spouse/partner.
Under the right circumstances it may be determined that the surviving spouse/partner is entitled to the entire estate.