If a loved one has died and no probate case has been opened, there is no need to panic. However, it is important not to delay taking action. As discussed above, probate is not required for every estate, but determining whether it is necessary requires reviewing the deceased person’s estate and how their assets were owned and titled.
If probate is required, delaying the process can leave assets inaccessible, increase estate expenses, and create opportunities for disputes or mismanagement.
1. Consult a Probate Attorney
A probate attorney can review the deceased person’s will, identify and investigate their assets, and determine whether probate is necessary. If the person has been deceased for some time and their estate requires probate, further delays could harm the estate and its beneficiaries by leaving assets inaccessible or allowing expenses and other liabilities to accumulate.
2. Initiate Probate Proceedings Right Away
If an attorney determines that probate is necessary, probate proceedings should generally be initiated as soon as possible. The person named as executor in the will typically petitions to open probate. However, if the named executor is unwilling or unable to serve, or if the deceased person died without a will, another interested party, such as a beneficiary or heir, may generally initiate the proceedings.
Probate is initiated by lodging the original will, if a will exists, and filing a Petition for Probate with the appropriate court.
3. Notify Interested Parties
Once probate has been initiated, required notices must be provided to interested parties, which generally includes beneficiaries, heirs, and creditors. These notices inform recipients that the deceased person has died and that a probate proceeding has been initiated to administer their estate.
Notices generally must be served by someone other than the petitioner, and certain notices must be published in a newspaper of general circulation in accordance with California law. The notices provide information about the initial probate hearing and, where applicable, inform interested parties of their right to object to the petition or challenge the will, along with applicable deadlines.
4. Attend the Initial Probate Hearing
The initial probate hearing is an important step in the process. It is generally when the court considers whether to admit the will to probate, addresses any objections, and determines who should serve as the estate’s personal representative.
Once appointed, the personal representative receives Letters Testamentary if the deceased person left a will or Letters of Administration if they died without a will. These documents provide evidence of the personal representative’s legal authority to act on behalf of the estate.
At this point, the personal representative can begin carrying out their duties to identify, protect, and administer the estate’s assets, pay valid debts and expenses, and ultimately distribute the remaining assets to the appropriate beneficiaries or heirs.
