If you have a relative who has passed away without a trust in California, you will likely need to go through Probate in order to gain access to his or her assets. Before you attempt to file a Petition for Probate, you’ll want to know a few key tips about how the courts work in California, and why you should strongly consider using an experienced probate attorney.
So, what do you need to know about Probating an estate in California?
Aside from the actual probate law that governs how the process works, each county in California has its own set of local rules. You can check out Santa Clara County’s local probate rules here for a glimpse of just some* of the rules one must know when probating an estate in Santa Clara County.
In addition to the local rules each county has, each county has its own judge or judges (but you knew that of course). What you may not know however, is that each individual judge has quite a bit of discretion over whether or not court documents get approved, denied, or a hearing is continued (delayed).
And, before you get to appear in front of the Judge, you’ll have to get by the Probate Examiners – a team of hardworking individuals at the courthouse who review all documents submitted to the court – and make sure you’ve met all the many statewide and local rules.
In short, you essentially have these 4 (well, 5) layers of a Probating an Estate in the California Courts. You’ll have to get through all of them in order to distribute the assets of the estate.
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California Probate Code – The Probate Code spells out all the laws set forth regarding administration of estates in California. The laws governing administration of estates in California is laid out by thousands of separate codes. Just the administration of an estate alone has over 5,000 separate codes (laws)!
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The County’s local rules – Every county in California has its own set of rules that must be followed, in addition to the laws set forth by the state.
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The Probate Examiners – Probate Examiners are a Judges best friend. They review everything before it gets to the Judge.
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The Judge – The decider. Depending on the size of the county, there are generally 1-3 probate judges per county. In uncontested probate matters, Judges generally allow matters to move through if they have met the requirements of 1 – 3.
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Unwritten rules and preferences of #2-4 – In some counties, the preferences of the Judge and the Probate Examiners also play a large role in determining what moves forward and what doesn’t. There is one county in the Bay Area that is a bit notorious for letting Petitioners know about unexpected requirements they must meet. Shh! We won’t say who.
As you can probably tell, you’ll benefit significantly from hiring an attorney who is well versed in all 5 of those layers.
Let’s go through a few examples of how each county can differ:
Santa Clara County – e-filing! Many counties now require mandatory e-filing, which is limited to specific e-filing websites. Probate in Santa Clara County requires a lot of patience when it comes to e-filing. On two of our recent matters, we waited nearly 3 weeks for the court to file 1 document! You’ll want to be careful with counties like this, because if the documents you file aren’t done exactly right, it could take the court weeks to get back to you and let you know you’ve made a mistake. Then you’re back at square one. There are numerous documents that need to be filed, many of which determine when your court hearing date will be, so time is precious in a probate matter.
San Mateo County – When you submit a document for filing in San Mateo County, you’ll need to submit accompanying documents (such as the Order) at the same time for the initial document to be filed. This is a rule that many counties in California have, but do not necessarily enforce. Aside from this rule, San Mateo generally doesn’t have too many quirks. You will want to keep in mind that while almost everything can be e-filed in San Mateo, Ex Partes must either be mailed or dropped off in person. You’ll find this to be true of Probate Courts in other counties too.
San Francisco County – San Francisco is perhaps the most notoriously strict courts in the Bay Area. San Francisco County Probate Court has a long list of local rules, a number of which you won’t see in any other counties. In addition to the stringent local rules, the Probate Examiners in San Francisco each have their own individual requirements they’ll ask you to meet. As touched on above, you’ll get an Examiner’s notes just prior to your court hearing. In order for the hearing to move forward in San Francisco County you’ll need to get your near perfect response filed before the hearing and then deliver courtesy copies of your filed documents directly to the Probate Examiner’s. The last 2 of those are seldom physically possible due to the delay in e-filing, so you’re bound to get your hearing continued to the next month. Just how many times you have a hearing continued in SF County depends upon the skill of your probate lawyer as well as your luck with Probate Examiners.
Alameda County – While this county has some super experienced Judges who are great to work with, it also has two distinctly unusual characteristics – Fax Filing and Year Long Waits for Hearings. Alameda County Probate Court is one of the few courthouses in the Bay Area that uses fax filing. Once you learn the ropes with fax filing (how to fill out the required facsimile coversheet for example), you generally get a pretty quick response from the Court. Now, although Alameda County will file your documents quickly, if you’re asking for a hearing date, be prepared to wait 12 months. If you have good reason, you can file an Ex-Parte Petition to advance your distant hearing date, but these are not always granted and require additional legwork as Ex-Partes cannot be fax filed. For families with pending probates in Alameda County, patience (along with a good attorney who can ensure you get by the probate examiners and actually have your hearing with the Judge) is key right now.
Contra Costa County – Contra Costa is just now preparing to switch over to e-filing. Currently, one can really only file documents in person. If you can navigate that factor, probating an estate in Contra Costa is a relatively smooth process for experienced probate attorneys. As long as you have a good understanding of the documents required under the probate code, a decent grasp of the local rules, and know how to effectively respond to Tentative Rulings, the Judges and Probate Examiners are there to help your estate be finalized.
Marin – Marin is one of the smallest counties in the State of California in terms of population. In a number of ways, the court functions like a small town courthouse – for example, there’s no e-filing or fax filing. But we haven’t found its small town ways to be negative – if anything, because of its small size, the Judge is able to take a larger role in the matters before her, and will often personally facilitate the resolution of problems should they arise.