How to Become a Personal Representative in California Probate
A relative has passed away and you are about to inherit their California property. You are probably saddened by the passing of your loved one, and now you must step into their shoes and decide what you want to do with the house: sell it, rent it, maybe even live in it.
If the original owner of the home had set up a living trust, the process is easy. A living trust spells out exactly who the successor trustee or trustees are and details what happens to the decedent’s assets. Follow the blueprint set by the trust, and you will end up the new owner of the property without any intervention from the courts. If you decide to sell the home, you can do it on your own terms – no court supervision, no extra steps.
If the home was not in a trust and no other exceptions to probate are applicable, you will need a process called probate to clear the title and to become a legal owner of the property (and, potentially, other assets). If you want to be in charge of the process, the court will have to appoint you as a personal representative (sometimes abbreviated as PR). At this point, you will want to hire an attorney who specializes in probate since California’s process is complex and any errors along the way may result in delays and additional expenses.
The first thing we do here at the Law Offices of Paul Horn is initial client meeting (which may happen virtually or in-office). During the initial client meeting, we gather information about the decedent’s assets. If we are told that the decedent owned real property, we pull the grant deed to confirm vesting and rule out any applicable probate exceptions.
Next, we create a family tree and gather the names and addresses of every person listed on the family tree. Probate attorneys do not represent the estate; we represent the personal representative of the estate. Thus, we must confirm that the person hiring us to start the probate has priority to be appointed as the personal representative of the estate.
California Probate Code Section 8461 provides the order of priority as to who can be the personal representative of the decedent’s estate:
- Surviving spouse or registered domestic partner
- Other surviving issue (great-grandchildren)
- Issue of Siblings (meaning nieces or nephews)
- Issue of grandparents (meaning aunts or uncles)
- Adult-children of a predeceased spouse or registered domestic partner
- Other issue of a predeceased spouse or registered domestic partner
- Other next of kin
- Parents of a predeceased spouse or registered domestic partner
- Issue of parents of a predeceased spouse or registered domestic partner
- Conservator or guardian of the estate acting in that capacity at the time of death who has filed the first account and is not acting as a conservator or guardian for any other person
- Public administrator
- Any other person
The above list makes it clear who has the priority. However, to make matters more complicated, in case there is no surviving spouse and if you are one of the four children of the decedent, all of you have the right to become the personal representative.
In the ideal world, all the children get together and decide which one is the most qualified to become the PR. “Qualified” doesn’t mean you need to have some sort of formal qualifications. It simply means the siblings must decide which brother or sister is the most responsible, lives closest to the property and the attorney office, and has the time and financial means to start and oversee the process.
In reality, any one of the children can go see an attorney on their own and request to start a probate process. If the family is not getting along well, this could literally mean whoever runs faster to the probate attorney’s office.
Once the court approves PR’s appointment, he or she will have the authority to sign a listing agreement if the property is going to be sold. For example, let’s say you come across a surviving spouse and she wants to sell the decedent’s home, but her stepson is not in agreement and feels that he should be in charge of dad’s estate. Ultimately, the surviving spouse would prevail under Probate Code Section 8461, absent a will naming the stepson as the executor.
In certain instances, the children who are inheriting the house might be elderly themselves or live out of state, or simply do not have the physical or mental energy to deal with the probate process. This person can nominate another individual to step in his or her shoes, even though they have the priority according to the laws.
In these situations, the heirs could nominate anyone they choose to be the personal representative. The heir would sign a legal document known as “Declination to Act as Administrator and Nomination”, so the person of their choosing would become the personal representative.
To sum up, if you stand to inherit a home in California but the decedent did not have a living trust, you will have to follow a process established by the state to become nominated as a personal representative. To avoid delays and costly errors, you may want to consider hiring a probate attorney, ideally, a state bar-certified specialist – to help you navigate the inheritance process and to start the probate petition.