January 20, 2017

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Probate FAQs
 

1. What is "Probate"?

Probate is the Court supervised process of proving a Will if one exists, qualifying and appointing a personal representative, identifying and gathering a person's assets after their death, paying all of the debts of the decedent and distributing the balance to the rightful heirs or beneficiaries.

2. Does every estate have to go through probate?

There are many situations where an estate does not require formal probate. These may include estates with total assets under $150,000, estates in trust and those cases where all of the estate passes to a surviving spouse. Even when formal probate is not required, however, some sort of legal process is often necessary. This is especially true when an estate owns an interest in real property. Legal counsel is recommended if you have questions regarding estate matters.

3. What if the person left less than $150,000?

If the deceased person’s property is worth less than $150,000 and you have the legal right to inherit from the deceased person, it may not be necessary to go through formal probate to get the property.

To transfer personal property you may be able to use an Affidavit for Collection of Personal Property per Probate Code §13100-13116. This form can be downloaded from the Court's website.

To transfer real property (like a house), you may be able to use a form, a summary proceeding or a more formal procedure may be required. It is recommended that an attorney be consulted for specific legal advice with regard to real property transfers.

4. What if the person left more than $150,000?

If the deceased person’s property is worth more than $150,000, it may be necessary to begin a formal probate proceeding.

Forms may be downloaded from the Court's website or purchased in a packet from the probate window in the Clerk's Office.

It is recommended that you consult an attorney for legal advice with regard to the need to bring a petition for a formal probate.

5. If the deceased person resided and died in one county can the probate be filed in another county?

The probate proceeding must be filed in the county where the decedent resided or owned real property. If the decedent lived in or owned real property in Stanislaus County, then the probate proceeding should be filed here.

6. What if I was married to the deceased person?

You may be able to use a summary proceeding such as a Spousal Property Petition.

Forms may be downloaded from the Court's website or purchased in a packet from the probate window in the Clerk's Office.

It is recommended that you consult an attorney for legal advice with regard to your rights as a spouse.

7. What does the "Custodian of the Will" do?

As set forth in Probate Code §8200, the custodian of the original Will has 30 days from the date he or she learns of the person's death to deliver the original Will to the Clerk's Office. There is a $50 fee for delivering an original Will unless it accompanies a petiton for probate. If a will is submitted together with a petition for probate, there is no fee.

The original Will must be delivered to the clerk of the county in which the deceased person lived or owned real property at the time of death.

The custodian must also send a copy of the Will to the person named in the Will to serve as Executor. Failure to comply with Probate Code §8200 could subject the custodian to legal proceedings.

8. What happens if there is no Will?

If no Will is found and a court proceeding is required, the Court may appoint a personal representative to manage the estate. The person petitioning the Court for appointment might be a spouse, domestic partner, close relative, friend or creditor of the deceased person. The Probate Code sets the order of priority for who can serve as personal representative.

It is recommended that an attorney be consulted with regard to who can serve as a personal representative.

9. What happens after a probate case is filed?

1) The probate clerk sets a hearing date.
2) The petitioner must give notice of the hearing to any party interested in the deceased person’s estate. Probate Code §48 defines who is an interested party. Proof of mailing the notice of hearing must be completed by a person over 18 years of age who is not a party to the proceeding. Proof of mailing must be filed with the Court prior to the hearing.
3) Publication in a newspaper of general circulation in the county where the deceased person lived or owned real property is required. Proof of publication must be filed with the Court prior to the hearing.
4) The court file is reviewed by the Probate Examiner before the hearing. The examiner’s notes are posted on the Court’s website. The petitioner has an opportunity to file additional documents as needed to cure any defects listed.

10. What happens when I go to court?

At the time of hearing, the Judge will call the case, consider any comments made in open court by an attorney or self-represented petitioner, consider the recommendation of the Probate Examiner and may grant or deny a petition. In some cases, a continuance is necessary to allow time to cure defects.

11. If you resided and died in one county can the probate be filed in and handled through another county?

The probate must be filed where the decedent resided or owned real property. If the person lived or owned real property in Stanislaus County then the probate could be filed here.

12. Do you have any recommendations for a probate attorney in Stanislaus County?

The Court cannot make recommendations with regard to probate attorneys. We can refer you to the Stanislaus County Bar Association's Lawyer's Reference Service at (209)571-5727 who can assist you with obtaining a probate attorney.

13. My case was taken off calendar; do I have to file a new petition?

If the matter is taken off calendar, you can request that the petition be reset. Re-notice, including re-publication, will be necessary if applicable.

14. Where is the list for probate properties that are for sale?

There is no list. However, posting for upcoming petitions can be found on the bulletin board outside the I Street entrance to the basement level of the courthouse.

15. Does the Court provide a list of probated property?

The Court does not provide such a list.

16. How many days do I have to file a creditor's claim? Is there a fee to file a creditor's claim?

According to Probate Code §9100, a creditor shall file a claim no later than four months after the date letters are first issued to a general personal representative. There is no fee to file a creditor's claim.

17. Where do I go for my Probate case?

In Stanislaus County, Probate cases are filed in the Clerk's Office located at: City Towers Courthouse; 801 10th Street, 4th Floor, Modesto, CA 95354. This is the same location of the courtroom where the Probate hearings are held.

18. Where can I get more information?

1. If you are in need of an attorney, Lawyers Referral Service may be able to assist you in finding an attorney. Their telephone number is (209)571-5727.

2. There are books available on this subject at the public library. The County Library is located at 1500 I Street, Modesto, CA.

3. Stanislaus County Law Library is located at 1101 13th Street, Modesto, CA.

4. Additional information can be accessed through the California Courts online self-help center at: http://www.courts.ca.gov/1082.htm

Last updated: April 10, 2015 4:33 PM