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What Is Probate?

In the abstract, probate is pretty straightforward. After you die, and if you do not have a surviving spouse, your home, car, bank accounts, cabin, timeshare, collection of antiques and other assets need to go somewhere, to someone. Your assets will go through probate if you only have a will, or if you die “intestate” or without a will.

The probate court oversees the process of gathering all your assets, settling your debts, and distributing your estate to your heirs. Unfortunately, for many families, the probate process is bureaucratic, complicated, full of legalese and can take a long time – sometimes well over two years. At Norton Basu LLP, we hold your hand throughout the probate process, guiding you through the legal process to reduce stress and inconvenience for you and your family.

Understanding The Steps In California Probate

This chart shows how California probate typically moves forward after a loved one’s death.

I’ve Heard Probate Is Expensive. How Are Probate Fees Calculated?

In California, fees are a fixed percentage of the estate. The amount of attorney’s fees is set by law in the California Probate Code. Probate fees are calculated on your estate’s gross value, taking into consideration the fair market value and excluding deductions for liens, mortgages or encumbrances.

For example, let’s say that a married couple, Chandler and Monica, own a home worth $1,000,000 and they die without having a revocable living trust and now their estate is going through probate. They have a mortgage on their home worth $400,000. You might assume that when calculating the value of their estate, the home would only be worth $600,000, which represents their equity in the home at the time of their death.

However, the probate fees will be calculated on the fair market value of the home ($1,000,000), without any consideration for the significant mortgage liability still on the home.

Charting Attorney’s And Personal Representative Fees In California

The following are some of the fixed probate fees in California:

Gross Estate Size Probate Fees
(Attorney’s Fees + Personal Representative Fees)
$150,000 $11,000
$500,000 $26,000
$1,000,000 $46,000
$2,000,000 $66,000
$5,000,000 $126,000

How Long Does California Probate Take?

It can depend on the complexity of the estate. Some smaller estates can be probated in just over a year but for most estates, a year-and-a-half to two years is more common. Larger estates with complex assets can take several years. This slow process can be very frustrating for your family. It is realistic to assume, for average estates, that it will take about 18 months.

Is What Happens In Probate Court Public?

Yes. Probate is a court process and therefore open to the public. This means anyone can view detailed information about your assets and your heirs. This will also include the names of all your creditors and the amount of your debts.

What If I Own Property In Another State?

This is known as ancillary probate. Ancillary probate is the process you go through when you own property in a state different than your home. Putting property into a living trust will avoid these additional processes.

Does Joint Tenancy Avoid Probate?

Yes and no. Consider the case of Monica and Chandler, who own their assets in joint tenancy. There’s no probate when Chandler dies because title passes automatically to Monica. However, when Monica dies, there is no longer a joint tenant to pass the interest to. This means that yes, there will be a complete probate on the entire estate at this point.

Does Having A Will Mean You Avoid Probate?

No. Having only a will and not a trust guarantees your estate will have to go through probate. Probate is the process whereby the state ensures that the terms of the will are followed.

Does A Revocable Living Trust Avoid Probate?

Fortunately, yes. All assets transferred to your living trust during your lifetime completely avoid the probate process. Transferring your assets to your trust really just means changing the title of your assets into the name of your living trust. There are special “transfer documents” that are needed to change who owns and controls the trust. The point of having a trust is that the assets in the trust – often investments and annuities – are no longer in your name but in the name of the trust. With a “living trust” you and your spouse or partner can make changes or even revoke it at any time.