The probate process begins when an interested party files a copy of the will and the decedent's death certificate with the California Superior Court sitting in the county of the deceased person's former residence. Whoever the decedent named as executor in the will must file a petition with the court requesting appointment as executor. If the petition is granted, the court will formally appoint the executor and provide him with documentation establishing his authority to third parties. This documentation allows the executor to access the deceased person's property -- by withdrawing money from his bank account, for example.
The executor must inventory all the property that belongs to the estate including bank accounts, cash, personal property, real estate and securities such as stock certificates. He must also collect any debts owed to the deceased -- business debts, for example, or a final paycheck.
Dealing With Creditors
All estate debts must be paid before any property can be distributed to heirs. The executor must locate all estate creditors and pay all debts, selling estate property if necessary to raise funds to pay creditors. He must also file tax returns on behalf of the estate. The IRS imposes an estate tax on estates worth more than an annually variable cutoff amount, and imposes income tax on estates that earn more than $600 during the tax year. The executor must complete IRS Form 706 if estate tax is due and IRS Form 1041 if estate income tax is due. At the time of publication, California does not impose estate taxes on the estates of those who died on or after January 1, 2005, and no filing is required.
Distribution of Assets
Once estate debts are paid, the executor may distribute assets to the beneficiaries. If insufficient assets remain in the estate to satisfy the bequests contained in the will, the court may apportion the remainder of the estate to heirs in the manner that most closely effectuates the deceased person's original intentions. If the estate is insolvent, heirs will receive nothing. The executor must complete IRS Schedule K-1, Form 1041, on behalf of each heir and distribute a copy to each heir.
The executor and the estate's attorney may be paid using estate funds. California law caps the total amount paid to both these parties using a sliding scale that begins with 4 percent of the first $100,000 of the value of the estate, not to exceed 1/2 percent of the value of an estate that exceeds $10 million.