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 court will establish if there is a 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 understanding of common matters that come with probate administration, including:
- 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 estates assets
- 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 of Death Deed
- 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
What is the Probate Administration Process in California?
Probate Administration in California will generally follow an eight-step process:
Filing a Petition
To begin the process, a petition for probate must be filed with the California Superior Court in the county where the deceased lived when they passed. The petition will allow the court clerk to schedule the first hearing after a minimum of 30 days.
Distributing Notices of Probate
Once the petition has been filed with the appropriate court, a notice of hearing must be published a minimum of three (3) times in a local newspaper. Mailing of the notice to all individuals named in the will (when a will is present) and any legal heirs of the deceased is required. Additionally, any known potential creditors must be notified of the hearing.
Personal Representative Appointment
Prior to the court proceedings, the probate court will need to appoint someone to oversee the process. When a will is available, it will generally name an executor who will serve as the personal representative. In cases where the person died without a will, the will does not name an executor, or the named executor is unable to perform the duties, the court will appoint an administrator to act as the personal representative. If a person would like to serve as the personal representative in these situations, they can petition the court to be named as the administrator or “administrator with will annexed.”
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
If the deceased created a will before their death, it must be proven to be valid unless it qualifies as a “self-proving” will. A self-proving will includes a self-proving clause declaring it was executed in accordance with California law, and signed by witnesses under penalty of perjury. To prove a will, a formal declaration must be signed by witnesses who were present when the will was signed, or understood the will was that of the deceased.
Collection of Assets
One of the personal representative’s primary duties is taking possession of all the deceased’s assets that are subject to probate. There are various estate planning tools that allow assets to avoid probate. Should an asset require transfer to title to another person’s name, it is the personal representative’s duty to do so. Examples of assets that may require a title change include but are not limited to:
- 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
California law allows creditors up to four months from the time a personal representative is appointed to submit claims against the deceased’s estate. The personal representative is responsible for providing creditor’s notice of the death. Any claims that are deemed valid must be paid by the estate before any other distributions are made. Debts include but are not limited to outstanding bills, credit accounts and funeral expenses.
Payment of Estate Taxes
Federal estate taxes may be imposed depending on the gross value of the estate and must be paid from the estate by the personal representative. Personal representatives are not generally held personally liable for estate taxes. However, if part or all the estate has been distributed prior to the taxes being paid and there are insufficient assets left to cover the estate taxes, personal liability may be imposed.
Conclusion of the Estate
The final step in the California probate process is the conclusion or closing of the estate. This includes producing a full accounting of all the actions performed by the personal representative regarding the estate. A petition is filed with the court which summarizes the estate and all actions taken on behalf of the state. Included with the petition are all the fees that are to be paid to the personal representative and the estate attorney (if applicable). With no objections and court approval of the accounting, an order is entered by the court concluding the estate. Following the order, the personal representative will distribute the remaining assets to the heirs or beneficiaries and pay any necessary fees.
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