Probate is the judicial process which manages the distribution of a decedent’s estate. An estate must be probated if the decedent passes without an Estate Plan. If the decedent passes with only a will the assets will be distributed according to the terms of the will (assuming valid). If there is no will, intestate laws of succession determine the distribution of the estate.

There may be some assets in the estate which identify beneficiaries that are not included in the probate process. This includes bank accounts, life insurance policies, investment accounts, retirement accounts, and assets which have been placed in a Trust. Everything else is subject to probate.

If the total value of the estate is less than $166,250.00 (Probate Code 13100, 2021) an affidavit may be filed to avoid the probate process.


Probate Process Includes:

An Executor is the person designated in the will to manage the estate distribution through probate. An administrator is appointed for that purpose, otherwise they are the same. Many of the duties faced by the Executor include managing properties, speaking with attorneys, filling out forms, and identifying assets and debts.

The first duty of the Executor is to collect the documents of the estate. The death certificate must be obtained as soon as available. Additional documents include a will, Trust documents, ownership documents, titles, deeds, life insurance policies, retirement accounts, bank statements, corporate records, bonds, stocks, and anything else of value.

All debts and financials must be gathered including tax returns, funeral and medical bills, utility and mortgage bills, credit card and loan statements, and any other outstanding debt. All documents regarding assets and liabilities must be gathered and reported.

To open a probate a Probate Petition must be filed with the court. The original will (if there is one) must be filed along with the petition. The court will issue Letters Testamentary if there is a will, and Letters of Administration if there is no will. The “letters” are court orders appointing the Executor/Administrator as such and granting authority over the estate. The Executor takes an oath and operates under the supervision of the court. All acts which have any financial consequence must be preapproved by the court. The letters enable the Executor to demand information/documentation from any party or entity that holds any of the estate’s assets, and to collect them into the estate.

Notice must be given to all potential heirs of the decedent’s estate whether or not they are named in a will. Intestate succession laws determine who must be given notice. All parties named in the will must also be given notice.

 At the earliest convenience, an Executor should notify any known creditors. Notice starts the time limit that a creditor has to assert a claim. In California, a creditor has 60 days from the date of notice to file a claim. The most common way to give notice is through a newspaper or other recognized journal, however actual notice is required to known creditors.

A final inventory and estimate of the value of the Estate must be submitted to the court by the Executor. The value is estimated on the date of death. Decedent’s last tax return and any other documents relating to the estates value, as well as any personal property (cars, jewelry, art, etc.) are included. Assets which do not pass through probate (life insurance policies, retirement accounts, bank accounts with beneficiaries, etc.) are valued at date of death for tax purposes.

After establishing the value of the Estate the Executor will settle all claims from the Estate’s assets. This includes all valid creditor claims including mortgage, credit cards, utilities, funeral and medical expenses, back taxes, or any other valid claim.     If the decedent leaves a surviving spouse a tax professional (CPA/Attorney) should be consulted. A joint tax return must be filed for the year of death.

This is when the heirs receive their inheritance. The court must approve all actions taken by the Administrator and will examine the entire process, including notice, accounting of all  debts and assets, and accuracy of valuation. Any issues such as outstanding debts or challenges to the process must be settled before final distribution. A balanced accounting is required. The Estate is terminated when all of the debts are settled and the assets are distributed. Probate generally takes a year or more (sometimes much more) depending on the estate and any issues or challenges to the process.


Probate is by definition a stressful endeavor beginning with the death of a loved one. If possible, counsel should be retained to avoid undue stress and complications. Please feel free to contact us if you are interested in discussing further.


Fill out our Contact Form to the Left


Call us at (714) 308-2381 or schedule a FREE phone consultation!


Email any questions to