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Probate

What is Probate?

Probate is a court process where the state of California gathers all your stuff, determines how much that stuff is worth, and distributes your stuff to either whoever you want (if you have a will) or whoever is related to you (if you don’t have a will). The probate process is very detailed and lengthy and court oversight is both wide and deep into all aspects of your estate. But don’t worry, we can help you will all aspects of probate.

How Do I Know If My Estate Will Need To Be Probated?

Anyone who has assets in their own name at the time of their death has an estate that needs to be probated. This is true even if the Decedent (the person who passed away) had a will. The will tells the Probate Court how to give your stuff away but the Probate Court still controls and oversees the entire process.

If your estate is worth less than $150,000 or you own real property worth less than $20,000 then a simplified version of the Probate process is available to your heirs. Your estate can be distributed via Affidavits. This is a process that the Probate Court makes available for lower value estates to make distributions easier. Information on this process is available here.

If the Decedent (the person who passed away) had a will, then there should be a named Executor. An Executor is the person who carries out the main responsibility for gathering all of the Decedent’s assets, reporting to the court and making sure that all the assets are accounted for, all debts have been paid and that all assets have been correctly distributed to the proper beneficiaries.

What’s Included In My Estate?

For purposes of Probate, your estate consists of all assets that you own in your own name alone (no one else is on the account, deed, etc.) and for which you do not have any listed beneficiary or Payable on Death designation. This means that things such as life insurance policies, retirement accounts, pensions and anything you own in join title does NOT have to go through the probate process.

However, anything that doesn’t fit into the above description likely will have to be probated in order to be transferred to your beneficiaries or heirs.

How Do I Start The Probate Process?

To begin the probate process, some homework needs to be done first. If you want to apply to the Probate Court to begin the process, the initial petition requires you to have some knowledge of the Decedent’s assets, whether or not they had a will, and who their beneficiaries or heirs are. If you know this information, you may be ready to start the process and are ahead of the game. Bring us this information and we can help you get through the Probate process, explaining each step to you so you are fully informed throughout what can be a long process.

How Can I Avoid Probate?

There are a number of things you can do to avoid Probate. You can keep your beneficiary designations for your retirement and other accounts updated. You can use Payable on Death forms where available from your financial institutions. You can title your real property as a joint tenancy.

However, the most effective way to avoid probate and keep control of how and when your estate is distributed is to use a revocable trust (also called a living trust). A revocable trust once funded with your assets (i.e. when you change the name of your assets from ‘Joe Smith’ to ‘Joe Smith, Trustee of the Joe Smith Revocable Trust’), removes the trust assets from your estate for Probate purposes. The Probate Court doesn’t count properly titled estate assets as yours – they belong to your trust.

How Much Does Probate Cost?

Probate is not cheap. The court fees are approximately $1,000 for filing of the petition, filing the accounting, and publication. The Probate Referee (the person who decides how much the estate’s non-cash assets are worth) charges 1% of the appraised value of non-cash assets. The administrator (if there is no will) or executor of the estate (if there is a will) can receive payment for his/her services, usually about 1% of the estate.

Attorneys are compensated per the California probate code on a sliding scale based on the value of the estate:

  • 4% of the first 100,000
  • 3% of the next 100,000
  • 2% of the next 800,000
  • 1% of the next $9 million
  • 0.5% of the next $15 million
  • Reasonable amount for exceeding $25 million

How Much Do I Need To Pay Up-Front To Begin Probate?

To begin the probate process, you will need to have enough to pay the court fees for filing the petition and for publication in a local newspaper. You do NOT have to pay your attorney any fees up-front. Probate attorney fees are calculated based on the Probate Court’s final appraisal of all the estate assets (cash and non-cash) and the fees are approved by the Probate Court.

How Long Does Probate Take?

Probate takes quite a while in the state of California. Due to cutbacks in court budgets, some counties in California only have one probate judge for the entire county! The probate process can take anywhere from 9 months for a straightforward probate to over three years for a complex estate. An average time frame to expect from filing of the petition to distribution of the estate is 12 – 18 months.

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