What Is Probate?
Are You Ready to Start Drafting Your Estate Plan or Living Will?
Probate is the legal process involved with settling the estate of a deceased person. During the probate proceedings, the California Superior Court, located in the county where the deceased individual lived at the time of their passing, oversees the management and distribution of assets that are part of the estate.
The Probate Court will establish the Testamentary Will and its validity. In cases where no valid will is found, the court will distribute the estate’s assets in accordance with applicable law.
An executor or administrator will be named by either the court or as detailed in a will. As the personal representative for the estate, the executor or administrator has many responsibilities in the probate process.
Our estate planning attorneys have helped guide clients just like you through the probate administration process. If you have been named the personal representative for an estate, contact our law office for a free consultation with our experienced probate administration lawyers.
Experienced Probate Administration Guidance
When you are named as an executor or administrator of an estate, you take on many responsibilities in the probate process. Working with an attorney experienced with probate litigation who can explain the responsibilities and effectively assist you is the best way to navigate the probate process. From the moment you contact our law firm, you can rest assured we will provide you with personal attention and knowledge to alleviate any concerns you may have.
Explaining what your duties as the personal representative are and answering your questions is our priority. We utilize the knowledge developed from our years of experience to provide you
- The responsibilities of an executor or administrator
- Understanding the full probate court process
- Resolving debt issues for the estate
- Locating and proving a will
- Contacting all heirs and beneficiaries
- Navigating out-of-state probate issues
- Properly completing all required probate documentation for accounting
- Gathering and taking control of the
- Assist in court appearances
These are just some of the areas with which our probate lawyers will assist you. As the process progresses, we will always be available to answer your questions, provide legal advice and make the experience as easy as possible.
“When I was named executor for my mother’s estate, I was surprised with the amount of responsibilities it included. Luckily Mike Abrate was able to explain how the probate court works and simplify the process for me. Without Mike’s legal advice, my family and I would have been lost.”
– Chuck M., Sacramento, CA
Is Probate Always Required?
Probate is not always required for all assets in an estate. Estate planning tools, like trusts, can be established prior to a person’s death that will allow assets to avoid probate. Common ways that assets can avoid probate include:
- Living Trusts
- Real Property by Right of Survivorship
- Real Property Revocable Transfer
- Payable on Death (POD), Transfer on Death (TOD), and Multi-Party Accounts
Additionally, estates and/or assets having a low gross value may also avoid passing through probate or qualify for a simplified probate process. These situations include:
- Simplified Options for Estates Valued at $150,000 or Less
- Personal Property Totaling Less than $150,000 by Affidavit
- Real Property Valued Less than $50,000 by Affidavit
- Real and Personal Property Totaling Less Than $150,000
To learn more about these legal options, please visit our article on Avoiding Probate, or contact our office to speak with an estate planning attorney experienced in probate administration.
What is the Probate Administration Process in California?
Probate Administration in California will generally follow an eight-step process:
Filing a Petition
Distributing Notices of Probate
Personal Representative Appointment
To aid the personal representative in their responsibilities, they may choose to hire an estate planning attorney who is experienced in the probate law. The attorney’s fees are set by law as a percentage of the gross estate. These probate fees are paid by the estate upon conclusion of the probate proceedings.
Prove Validity of a Will
Collection of Assets
- Bank and Credit Union Accounts
- Brokerage Accounts
- Mutual Funds
- Physical Assets (i.e. real property and vehicles)
- Stocks and Bonds
In most cases, the court will require an inventory of the property in the estate. Appraisal of certain types of property may also be required. These appraisal fees will be charged to the estate.
Payments of Debts
Payment of Estate Taxes
Conclusion of the Estate
How Long is the Probate Process in California?
In California, the probate process will generally last a minimum of 7-8 months. This allows time to notify all legal heirs, beneficiaries, and creditors of the probate hearing. The length of the probate process can extend based on the complexity of the estate, if a will is available and able to be proven, someone contesting the validity of a will, and other factors. If you believe you are involved with a probate case where one of these issues may arise, contacting an experienced probate lawyer is recommended. Our probate attorneys will guide you through and help to minimize these factors.
“We thought all my parents needed was a quick will that we created with them online to distribute their assets after they died. We were wrong. Luckily a friend recommended we contact Mike and Dan to help us. They outlined what probate would require and guided us every step of the way. Thanks for helping my family during this difficult time.”
– Nicole M., Folsom, CA
Complications to the Probate Process
Complications to the probate process can arise for a variety of reasons. The most common complication comes when someone contests the will. As a “living” document, a will or trust can require updates and/or revisions as situations change over the course of a person’s lifetime. As a person’s relationships, financial status, or possessions change the will must be updated to represent their new situation. A probate court can be convinced the current will is not a true and accurate representation of the deceased’s wishes due to a range of factors or circumstances.
The procedure of contesting a will can be a complex process that is best navigated with the legal advice of an attorney experienced in probate litigation. With years of experience developing solid estate plans that include wills and trusts, we have helped clients successfully challenge the validity of wills that did not truly represent the deceased’s wishes. If you feel you are involved in a case that is not correctly representing the deceased’s true wishes, contact our office for a free consultation today.
What Does A Probate Administration Attorney Cost?
The probate fees an attorney can charge are set by law in California. These statutory fees are based on a percentage of the gross value of the estate. Assets that do not pass through probate are not included as part of the gross estate. According to California Probate Code section 10810 and 10811, a probate attorney’s fees follow this fee schedule:
- 4% of the first $100,000 in assets
- 3% of the next $100,000 in assets
- 2% of the next $800,000 in assets
- 1% of the next $9,000,000 in assets
- 0.5% of the next $15,000,000 in assets
- The probate court will determine a “reasonable amount” for assets exceeding $25,000,000
The gross value of an estate is not reduced by outstanding debts and/or mortgages. If an estate has a total value of $500,000 with an existing real estate mortgage of $200,000 and outstanding debts of $50,000, the attorney’s fees would be based on the full $500,000 valuation, not the $250,000 net equity.
Examples of probate attorney fees based on an estate with a gross value of $750,000.
$100,000 X 4% = $4,000
$100,000 X 3% = $3,000
$550,000 X 2% = $11,000
Total Probate Attorney Fees = $18,000