In California, when a person dies with assets valued over $184,500, their estate must go through probate, regardless of whether they have a will.

A will does not prevent probate. The main difference between having a will and not having one is that a will allows the deceased to choose who manages their estate (executor) and who inherits their assets, instead of these decisions being made by the state of California.

Probate is a court-supervised process that involves identifying and collecting the deceased’s assets, paying taxes, debts, and expenses, and distributing the remaining assets to the beneficiaries. This process usually takes about a year.

If there is a will, Section 8200 of the Probate Code requires the holder of the will to deliver it to the court within 30 days of the person’s death.

If there is a will, the named executor will petition to be appointed as the estate’s executor. Without a will, anyone (including creditors) can petition the court to be appointed as the estate’s administrator, and the court will decide according to probate law.

After filing a petition, all beneficiaries and heirs are notified of the probate proceedings, and a notice is published in a local newspaper. Any interested party can contest the appointment of the personal representative or challenge the will’s inclusion in the probate process.

Once a personal representative (executor if there is a will, administrator if there isn’t) is appointed, they will notify all known creditors, who have 120 days to file claims against the estate. During this period, the personal representative will inventory the deceased’s assets, which must be appraised by a court-appointed probate referee as of the date of death.

The personal representative pays all valid debts and files the deceased’s final income tax returns, ensuring all taxes are paid. They will then file a final report and accounting (or request an accounting waiver), detailing the actions taken, the estate’s assets, income, expenses, and the proposed distribution of the estate.

To encourage the settlement of the deceased’s affairs, the Probate Code authorizes compensation for the personal representative and their attorney for ordinary services, based on the estate’s value:

  • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of the next $9,000,000
  • 0.5% of the next $15,000,000
  • A reasonable amount determined by the court for amounts above $25,000,000

The Probate Code also allows the court to approve compensation for extraordinary services provided by attorneys for the estate, such as managing the deceased’s business, handling certain tax matters, selling assets, or litigation, in amounts deemed just and reasonable by the court.

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