If you are the person who was appointed or who has volunteered to take care of the legal ramifications of a loved one's death, a basic understanding of the California probate process may help get you started.

1. 1 Copyright 2013 Timothy P. Murphy www.norcalplanners.c
WWhhaatt ttoo DDoo WWhheenn aa LLoovveedd OOnnee DDiieess
By Timothy P. Murphy
Estate Planning Attorney
www.norcalplanners.com
Helping our clients to build, preserve and pass on their legacies.
Northern California Center for Estate Planning and Elder Law

2. 2 Copyright 2013 Timothy P. Murphy www.norcalplanners.com
It may seem impossible, in the midst of all that grief, to
think about the legal ramifications of your loved one’s
death; however, someone does have to do it.
If you are the person who was appointed or who has
volunteered for the position, a basic understanding of the
California probate process may help get you started. Of
course each estate is unique, meaning that no two
probate processes are the same; however, the following
steps apply to most estates.
Locating the Last Will and
Testament
The first step that should be taken after the death of a
spouse or close family member is to locate an original
Last Will and Testament, if one exists, as well as any
other relevant estate planning documents.
Checking through personal files of the deceased, asking
relatives, and inquiring with the decedent’s attorney
should turn up a Will if one exists. The original Will needs
to be lodged with the appropriate court to probate the
estate. Other estate planning documents may help
determine if probate is necessary.
Losing a loved one is an emotionally charged period
of time when most people are not thinking clearly.
Each state is unique,
meaning that no two
probate processes are the
same, however a few basic
steps apply to most estates.

3. 3 Copyright 2013 Timothy P. Murphy www.norcalplanners.com
Testate vs. Intestate
When a valid Last Will and Testament was left behind, the
decedent is said to have died “testate.” An “intestate”
decedent is someone who died without leaving behind a
valid Will. When a valid Will exists, the terms of the Will
decide how estate assets are to be distributed in most
cases. When no Will was left behind, the state intestacy
laws will decide how assets are distributed. California
intestacy laws are complicated; however, the following
illustrates the general order of property distribution in an
intestate estate:
1. Spouse/registered domestic partner
2. Descendants (children, grandchildren etc.)
3. Parents
4. Siblings
5. Grandparents
The actual order depends on whether the decedent’s
property was community property or separate property.
Before a court can determine what percentage an heir will
receive in an intestate estate, the court will first have to
legally determine who the heirs of the estate are through
the probate proceeding.
It is also possible for an estate to have both testate and
intestate assets. If a valid Will, or other estate planning
document, fails to provide for the distribution of an asset,
then that asset is considered an intestate asset and will
pass through the laws of intestacy.
An “intestate” decedent is
someone who died without
leaving behind a valid Will.
When no Will was left
behind, the state intestacy
laws will decide how assets
are distributed.

4. 4 Copyright 2013 Timothy P. Murphy www.norcalplanners.com
Not all estates require formal probate and not all
estate assets are included in a formal probate when
one is required.
Formal Probate vs. Simplified
Procedures
Not all estates require formal probate and not all estate
assets are included in a formal probate when one is
required. Factors such as the value of estate property, the
type of property, the manner in which assets are titled,
and who is claiming the estate assets will decide whether
a simplified procedure is available.
Assets such as life insurance or retirement account
proceeds will distribute directly to the beneficiary without
going through probate. Real property and bank accounts
that are properly jointly titled may also pass without the
need to go through probate. Under California probate
laws, real and personal property worth under $150,000
may also qualify for a simplified procedure; however, this
still may require the appropriate forms to be filed with the
probate court.
Executor vs. Administrator
When formal probate is required, someone must oversee
and administer the process. If a Last Will and Testament
was left behind, an executor should have been named in
the Will to fill this position. When a Will was not left
behind, someone must step forward to fill the position.
Typically, this is a spouse/domestic partner, parent, or
What Every Senior Should Know
About Probate
Want to see two groups who make the
Republicans and Democrats look like
one big, happy family? Then put into
one room those attorneys who believe
in probate and those who prefer their
clients manage their affairs with a
Revocable Living Trust. You’ll get as
contentious an assembly as you could
possibly hope for.
For seniors, the debate has special
meaning because the vast majority of
probate cases revolve around the
affairs of those Americans age 60 and
over. This report from the American
Academy of Estate Planning Attorneys
explores the reasons for the debate
and offers guidelines to help seniors
steer clear of the fray.
This Report is Compliments of
Northern California Center for Estate
Planning and Elder Law. If you would
like a hardcopy of this report please
email info@norcalplanners.com or
call (916) 437-3500.

5. 5 Copyright 2013 Timothy P. Murphy www.norcalplanners.com
adult child. In either case, the court must officially approve the petition and appoint the
executor or administrator.
In order to begin the probate process, the person
named as executor under the terms of the Will, or
the person who wishes to become the
administrator, must file the appropriate petition in
the probate court asking the court to open the
probate and to officially appoint him or her as
executor/administrator.
The Role of
Executor/Administrator
The executor/administrator has numerous duties
throughout the probate process. The more
complicated the estate is the more complicated the
job of executor/administrator will be. Most
executors/administrators retain the services of an
experienced and qualified estate planning attorney to
assist during the probate process.
In order to begin the probate process, the person
named as executor under the terms of the Will, or the
person who wishes to become the administrator,
must file the appropriate petition in the probate
court asking the court to open the probate and to
officially appoint him or her as executor/administrator. After filing the appropriate documents
to open the probate estate, the executor/administrator must inventory the decedent’s estate
and value each asset. The inventory is then filed with the probate court for review.
Taking the “Problem” Out of Probate is
perhaps one of the most comprehensive
guides on the probate process available
and you can get your copy absolutely
free!

6. 6 Copyright 2013 Timothy P. Murphy www.norcalplanners.com
Creditors of the estate must also be notified of the probate.
Public notice is also required through publication in a local
newspaper. Creditors are then allowed a specific amount of
time to file a claim against the estate. These claims are
reviewed and approved or denied by the
executor/administrator. If there is a dispute about a claim,
the dispute is litigated in court. All approved claims are then
paid out of available estate assets. Personal income taxes
and estate taxes are also paid out of estate assets.
Challenges to a Will
When a potential heir, or known beneficiary, believes that a
Will admitted to probate is not a valid Will, a Will contest
may be filed. Despite popular belief, a Will contest cannot be
filed simply on the basis that someone is not happy with his
or her gift, or lack thereof, under the Will. In California, the
grounds on which a Will may be contested include:
 Mental incapacity
 Undue influence
 Fraud or mistake
 Revocation or existence of later executed Will
 Failure to meet formalities (technical deficiencies)
If a Will contest is filed, the executor/administrator has a
legal duty to defend the Will that has been admitted to
probate. A Will contest can take months, even years, to
resolve. For the most part, distribution of estate assets
cannot occur until a resolution has been reached regarding
the Will contest or the issue has been fully litigated in court.
A Will contest cannot be
filed simply on the basis
that someone is not happy
with his or her gift, or lack
thereof, under the Will.
If there is a dispute about a
creditor’s claim against the
estate, the dispute is
litigated in court.

7. 7 Copyright 2013 Timothy P. Murphy www.norcalplanners.com
Distributing Property
When all estate assets have been inventoried and valued, all
creditors paid, and all challenges to the Will have been
resolved, only then can the executor/administrator normally
begin to distribute the remaining property to the
beneficiaries or heirs to the estate.
About the Author
Timothy P. Murphy is an estate
planning and elder law
attorney whose practice
emphasizes helping people to
build, preserve and pass on
their wealth. He works with his
clients to accomplish their goals
while avoiding unnecessary
court proceedings and
minimizing or eliminating
exposure to death taxes. Mr.
Murphy also assists families
facing the myriad of problems
associated with dealing with a
loved one’s declining health
and rising needs for care. He
has practiced law in the
Sacramento area for 29 years,
first with a large firm, and then
with his own firm since 1987.