Can I cancel probate for an old and diminished estate?

Question

Is there a way to abandon a California probate proceeding when the case is ten years old and there are no -- or very few -- assets to be accounted for?

Answer

It is often tougher to get out of a legal proceeding than to get into one. But here, you may have an easier time of it.

In California, if it turns out after a probate proceeding is opened that there are no assets subject to probate, the personal representative (executor) may file a simple petition with the court to end the proceeding. This is the gospel according to Probate Code Section 12251.

The petition is then assigned a hearing date and all interested people are given notice of the hearing. If the court approves the petition, it will make an order terminating the proceeding and discharging the personal representative.

However, because the personal representative is responsible for maintaining and protecting assets, the probate court may be concerned about how and why the assets dwindled. If so, the court will require a full explanation. It may impose sanctions if it finds that the personal representative did not properly safeguard the estate.

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