June 4, 2014

Proof of Death - Probate

When a person passes away, his or her estate might require probate. Probate is commonly defined as the judicial process where a person's assets are collected, their debts paid and the balance distributed to their beneficiaries. The typical probate in California can range from 7-12 months depending on the county. The last two probates I handled took 10 months (Sacramento County) and 9 months (Santa Clara County).  Unfortunately the California legislature has not placed a priority on the California judicial system and budget cuts have caused staff reductions and court closures which have severely affected timely probate administration. The attorney fees for probate are basically set by statute and are based off the value of the estate. See Probate Code § 10810. Attorneys seldom handle a probate for less than the statutory fee given the amount of work required to probate an estate.  

The threshold figure for probating an estate is greater than $150,000 in California "probate assets." Rather than devote this post to what constitutes "probate assets" I will instead focus on a peculiar omission of the probate process.

One of the first questions I am asked by an executor is how many death certificates to order. The standard response is 10 death certificates. This answer is prompted by the fact that ordering death certificates can be a lengthy process unless the executor is willing to go to the county recorder in-person. So one errs on the side of caution.

Various entities require that a death certificate be presented to them in order to validate that the decedent has in fact passed away. For example, a bank will typically require that a death certificate be presented to prove that the account holder has passed away. Consequently, the account will be frozen or transferred, the bank will not let the account continue as is. However, I have noticed that banks and other entities have increasingly become agreeable to a copy of the death certificate. Hence, the executor does not have to give up one of those hypothetical 10 death certificates.

Very oddly though, there is no requirement that a death certificate be filed when probating an estate. 

Judicial council form DE-111 is the form used to begin a California probate. Nowhere on the form does it require that a death certificate be attached to the petition. Form DE-111 simply asks for the date of death and the decedent's address at the time of death. Although form DE-111 does require the petitioner to sign a declaration under penalty of perjury that the contents of the petition are true and correct. Still, it is hard to believe that no death certificate is needed during probate given that it is a judicial process. From personal experience, out of the 4 probates I have handled in the past 2 years, at no point did the probate court ask for proof of the decedent's death. A simple filed statement that the decedent had passed away was sufficient.