1. Which Assets Need Probate before They Can Be Transferred?
A family may find a will and assume the court must handle every account. The answer starts with ownership, not the document's existence. Review each asset's title and transfer instructions before opening a formal estate.
Check Whether the Will Controls Each Asset
Two accounts at the same bank can pass through different procedures because their ownership terms differ.
- Sole ownership: Examine the deed or account title and test eligibility for a simplified transfer.
- Joint ownership: Check whether the deed or account establishes a right of survivorship.
- Trust assets: Confirm the property was placed in the trust and identify the successor trustee.
- Named beneficiaries: Examine payable-on-death, retirement, and insurance designations for effective beneficiaries.
Properly titled trust property generally follows trust administration rather than estate probate. Disputed ownership may still require judicial review.
Match the Records to the Available Transfer Procedure
Before contacting the court, gather documents showing who died, who may inherit, and what the person owned.
| Document | What to Confirm |
|---|---|
| Death certificate | Identity and date of death |
| Original will | Executor nomination and intended recipients |
| Family records | Heirs and persons entitled to notice |
| Deeds and account statements | Ownership and beneficiary arrangements |
Death certificate
- What to ConfirmIdentity and date of death
Original will
- What to ConfirmExecutor nomination and intended recipients
Family records
- What to ConfirmHeirs and persons entitled to notice
Deeds and account statements
- What to ConfirmOwnership and beneficiary arrangements
For deaths on or after April 1, 2025, the qualifying personal-property affidavit limit is $208,850, with a 40-day waiting period. Different rules govern real property. Without a valid will, intestate succession determines inheritance rights.
2. Who Can Apply to Manage the Probate Estate?
A will may nominate an executor, but it does not give that person immediate access to estate funds. An eligible petitioner asks the appropriate Superior Court for appointment. The court's order and issued Letters establish a personal representative's authority.
Prepare the Petition and Notify Interested Persons
The initial filing identifies the decedent, proposed representative, and persons who must receive notice.
- Original will: Under Probate Code § 8200, unless a petition is filed earlier, its custodian must deliver it to the court within 30 days after learning of the death and provide a copy to the named executor, or a beneficiary, when required.
- Petition: Form DE-111 identifies the requested appointment; required hearing notice must be served and published.
- Authority: Obtain issued Letters after the court grants appointment and applicable requirements are satisfied.
Do not distribute property simply because relatives agree on the will's meaning. When a valid will governs distribution, testamentary succession identifies the intended beneficiaries.
Check the County's Filing and Original-Will Rules
State probate law governs the claim, but court submission rules differ. Check the local probate calendar before filing.
- Los Angeles: Represented parties generally e-file covered documents. Following an e-filed petition, Local Rule 4.55 requires delivery of the original will within one court day.
- Orange: Original wills are not e-filed; the clerk generally needs the original at least five days before the hearing.
- San Diego: Attorneys generally e-file covered petitions, while original wills require paper delivery. Self-represented filers may e-file.
For each court, confirm the proper probate division, case number, probate notes, and any filing exemption.
3. What Must the Representative Complete before Distribution?
Appointment begins the work; it does not authorize immediate payment to heirs. The representative secures property, prepares an inventory, reviews debts, and accounts for transactions. Court approval is generally required before final distribution.
Inventory Property and Resolve Creditor Claims
An unpaid medical bill and a mortgage statement need separate review. Record the evidence supporting each obligation.
- Inventory: Probate Code § 8800 generally requires Inventory and Appraisal within four months after Letters first issue to a general personal representative, unless the court extends the period.
- Claims: Under § 9100, creditors generally file by the later of four months after those Letters or 60 days after their required notice. Other limitation periods still apply.
- Taxes: Check final income tax, estate income tax, and any applicable federal estate tax filing duties separately.
The representative must assess whether a submitted claim is valid before payment. Insolvent estates require closer attention to creditor payment priority.
Account for Transactions and Complete Distribution
Heirs need to know what entered the estate, what was spent, and what remains available.
- Accounting: Reconcile appraised assets, income, sales, expenses, and proposed inheritances.
- Final petition: Submit the report and any required accounting or waivers for court review.
- Closing: Transfer property under the order, obtain necessary receipts, and seek discharge when administration is complete.
Federal tax filings and court approval are separate obligations. A proposed distribution should account for unresolved claims and expenses.
4. Frequently Asked Questions
Can a surviving spouse avoid full probate?
Possibly. A spousal or domestic partner property petition may confirm qualifying rights without a full administration. Ownership records and marital property facts determine whether it applies.
What if the person named as executor cannot serve?
The court can consider another eligible petitioner under the will and statutory priority rules. Being a beneficiary does not itself establish an immediate right to manage estate property.
Can a family pay funeral expenses from an estate account?
Payment depends on the account's ownership and the authority of the person directing it. Keep receipts and distinguish permitted expenses from unauthorized withdrawals.
Does receiving an inheritance mean federal estate tax is owed?
No. Federal estate tax depends on the taxable estate and applicable rules, while a beneficiary's separate income tax treatment depends on the asset received.
5. Review Estate Documents with SJKP Attorneys
When a deed and a beneficiary form point to different recipients, the family needs to identify the controlling document before transferring funds. SJKP's attorneys can review wills, ownership records, and court notices to assess the available probate or transfer procedure. Contact SJKP to discuss the required authority and relevant deadlines.
17 Sep, 2026
