Estate Planning 101

How Long Does Probate Take in California?

In this article, we'll cover the topics that impact the length of probate in California, including complexity and value of the estate, guardianship, trusts, not having a Will, and claims from creditors or family members.
October 6, 2023

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The probate process plays a vital role in estate planning, and understanding its timeline is often a concern for many. The duration of probate in California, like in all states, varies based on several factors, including the size and complexity of the estate, the presence of a will, and the efficiency of the executor or personal representative. On average, probate in California can take anywhere from several months to over a year. In this post, we will explore the factors that influence the length of the probate process in California and provide some practical tips on how to navigate it efficiently.

The more complex and valuable the estate, the longer things are likely to take:

In California, as in other states, the complexity and value of an estate can significantly affect the duration of the probate process. This is due to the necessity to identify, locate, value, and manage various types of assets, potential debts and tax obligations, and the potential for disputes among beneficiaries or heirs.

Real estate, for instance, can significantly impact the timeline. If the deceased owned property in multiple states, each property might need to be probated separately in its respective jurisdiction, adding to the complexity and length of the process. Moreover, certain types of assets such as businesses can also complicate matters, requiring additional steps to value, transfer, or sell, which can be time-consuming and may require specialized legal and financial expertise.

California also recognizes non-probate assets, which are assets that bypass the probate process and pass directly to the named beneficiaries. These include life insurance policies, retirement accounts, and properties held in joint tenancy. While these assets can help expedite the process, identifying, locating, and managing them can still take time.

Furthermore, if an estate is valued over $166,250, it will likely need to undergo formal probate, which is a more complex and lengthy process than informal probate.

If the deceased died “intestate” (that means they didn’t have a will), probate usually takes a lot longer:

When a person dies without a valid will, they are said to have died "intestate". In such cases, the estate is distributed according to California's intestacy laws, which can add significant time to the probate process.

Without a will to provide clear instructions, the court must appoint an administrator, which can be a time-consuming process if there are multiple interested parties or disagreements. Additionally, the administrator's responsibilities are often more complex in an intestate estate, adding to the duration of probate.

Moreover, without a will to dictate the distribution of the estate, potential disputes among heirs can arise, potentially leading to legal disputes and court intervention, which can dramatically extend the probate process.

If trusts are involved, the process is usually slower:

While trusts are often used as a tool to bypass the probate process, they can, paradoxically, slow down the process when they are part of an estate undergoing probate. This is largely due to the complexities involved in managing and distributing the assets held in the trust.

A trust is a legal arrangement where one person (the settlor) transfers assets to a trust, which is managed by another person (the trustee) for the benefit of a third person (the beneficiary). When the trustor passes away, the assets in the trust do not need to go through probate because they technically belong to the trust, not the deceased. However, this doesn't mean they're free from complications.

One of the main reasons why trusts can slow down the probate process is because they often require careful administration. The trustee must manage and distribute the trust's assets in accordance with the trustor's wishes, as outlined in the trust agreement. This can be a time-consuming and complex task, particularly if the trust contains a variety of assets or if the distribution instructions are intricate.

Furthermore, if the trust was not set up correctly or if there are questions about its validity, disputes can arise. These disputes can take a considerable amount of time to resolve, particularly if they end up in court. In extreme cases, the entire trust may even need to be probated, which can significantly extend the timeline.

Another factor that can complicate the probate process is the presence of multiple trusts. If the deceased had a number of different trusts, each one will need to be administered separately. This can be a lengthy and complex process, particularly if the trusts have different trustees, beneficiaries, or distribution instructions.

In California, as in other states, trusts can also impact the probate process due to tax issues. Trusts are subject to different tax rules than estates, and navigating these rules can be complex and time-consuming. Depending on the size and nature of the trust, it may be necessary to hire a tax professional to ensure everything is handled correctly.

Matters of guardianship will also slow down the probate process:

When a deceased individual leaves behind minor children, the probate process often becomes more complicated and lengthier. This is primarily due to the need to establish guardianship for these minors, a process that requires court intervention and can significantly extend the timeline of probate.

In California, if a parent passes away and the other parent is already deceased or deemed unfit, a guardian needs to be appointed for any minor children. If the deceased left a will, they likely named a guardian for their children. However, the court still has the final say in this matter. Even if a guardian is named in the will, the court must approve the choice, ensuring it is in the best interest of the children. This review process can take time and may extend the probate duration.

If no guardian has been named in a will, or if the deceased died intestate, the responsibility falls on the court to select a suitable guardian. This can lead to potential disputes if multiple family members or friends wish to be appointed as the guardian. Such disputes can prolong the probate process as the court takes time to review each potential guardian's suitability.

Moreover, the appointed guardian may need to establish a guardianship estate if the minor inherits assets. The guardian is then responsible for managing these assets on behalf of the minor until they reach the age of majority. This process requires court oversight and involves additional court proceedings, paperwork, and potentially, legal fees, which can add to the overall length of the probate process.

Furthermore, it's worth noting that the court will likely require the guardian to post a bond. This is a type of insurance policy that protects the minor's inheritance in case the guardian mismanages or misappropriates the funds. Securing a bond can take time and may add another layer of complexity to the probate process.

Claims on the estate — either from creditors or other family members — can make things take a lot longer:

When an individual passes away, their estate often becomes the target of numerous claims. These are primarily from creditors who were owed money by the deceased, and potential heirs who may have a stake in the inheritance. Both types of claims can have a significant impact on the probate timeline, often extending it considerably.

In California, there are legal protocols in place to deal with claims from creditors. Once the probate process begins, the executor or personal representative of the estate is required to notify all known creditors of the decedent's death. The creditors then have a given period, generally four months in California, to file their claims against the estate for any outstanding debts. If the estate lacks sufficient funds to cover all debts, the executor will follow the state's order of priority to determine which debts to pay. This can be a complex and time-consuming process, particularly if the estate is insolvent or if there are disputes over the validity of certain claims.

Claims from family members or potential heirs can also add to the length of the probate process. Disputes can arise over the validity of the will, the value of the estate, or the distribution of assets. Resolving these disputes can take considerable time and may even involve court proceedings, further delaying the completion of probate.

Additionally, if there are claims for family allowance in California, this could also extend the probate process. This allowance is a legal provision that allows the decedent's spouse or minor children to receive living expenses from the estate during the probate process. Determining and agreeing on the amount of this allowance can sometimes lead to disputes and delay the final distribution of the estate.

The probate process — and how long each stage takes:

The probate process in California is methodical and consists of several stages. Understanding these stages can help you estimate how long probate might take. However, remember that these are just rough estimates and the actual timeline can vary significantly based on the factors previously discussed.

  1. Opening the Estate: The probate process begins with filing a petition to open the estate with the probate court. The court then appoints an executor or administrator who is responsible for managing the probate process. This step usually happens within a month or so after the individual's death.
  2. Notification of Heirs and Creditors: The executor is required to notify all potential heirs and known creditors of the decedent's death. This can take a few weeks to a few months, depending on the number of parties involved.
  3. Inventory and Appraisal: The executor must then inventory the decedent's assets and have them appraised to determine their value. This process can take several months, depending on the complexity of the estate.
  4. Payment of Debts and Taxes: The executor uses the estate's funds to pay off any outstanding debts and taxes. In California, creditors have four months from the notification to file claims against the estate. Resolving all claims can take several more months, depending on the number and complexity of the claims.
  5. Distribution of the Remaining Assets: After all debts and taxes have been paid, the executor can distribute the remaining assets to the heirs according to the decedent's will or California's intestacy laws if there is no will. This process can take a few weeks to a few months, depending on the number of heirs and the types of assets involved.
  6. Closing the Estate: Finally, the executor must prepare a final accounting, showing all payments and distributions made from the estate. Once the court approves this accounting, the estate can be officially closed. This final step can take a few weeks to a few months.

What to do if your executor isn’t moving probate along properly:

If you feel the executor of the estate is not fulfilling their duties appropriately, it's important to know your rights and the steps you can take to ensure the estate is handled correctly.

In California, the executor has a fiduciary duty to manage the estate in the best interest of the beneficiaries. This includes completing the probate process in a timely and efficient manner. If you believe the executor is not meeting their obligations, you can raise your concerns with the probate court.

Start by having a discussion with the executor. They may be able to address your concerns directly or provide information that clarifies the delays. However, if this doesn't resolve the issue, you can file a formal complaint with the probate court.

In your complaint, you'll need to provide evidence of the executor's shortcomings. This might include instances of negligence, mismanagement of estate assets, or failure to communicate important information about the probate process. The court will review your complaint and, if it finds merit, may take several actions.

The court could order the executor to provide a detailed report of their actions and the estate's status. Alternatively, the court might supervise the executor more closely to ensure they fulfill their duties. In extreme cases, where the executor has acted in bad faith or has seriously mismanaged the estate, the court may remove them and appoint a new executor.

It's important to remember that removing an executor is a serious action and typically a last resort. The court will generally only consider this if there's clear evidence of misconduct or inability to perform the required duties.