Learn More About Probate And Estate Law

Probate in California is the process of determining the rights and obligations of a person's legal and financial matters after their death. This process usually involves a court proceeding if the decedent (the person who died) leaves a will and also in situations where the decedent does not leave a will.

Probate serves as a way to transfer assets, resolve debts and clear title so the decedent's assets can be transferred to the rightful heirs. It can be a complicated process or it can be a simple and straightforward process, depending on the clarity of the decedent's will, the clear line of inheritance if the decedent did not leave a will and how organized the decedent's estate is at the time of his or her death.

If the decedent left a will, the distribution of the estate will follow the terms of the decedent's Will. If there is no will, then distribution will follow the California "intestate" laws and be distributed to the decedent's closest relatives.


The Cost Of Probate

The cost of probate depends on the size of the estate as well as extraordinary additional costs and the complexity of administration. The California Probate Code sets the maximum fees attorneys can charge for a probate and this fee is the same for the executor of the estate (where there is a will) or the administrator of the estate (where there is no will). Typically, executors and administrators pay lawyer fees and their own fees from the estate assets when the estate administration is completed.


Appraisal Of The Estate

In all estates (unless they consist solely of cash and bank accounts), a probate referee completes an appraisal of the estate to determine the fair market value of the real and personal property assets.


Court Costs

In addition to the statutory fees for attorneys, executors and administrators, there are costs for appraisal fees, publication costs, court filing fees, and miscellaneous fees charged by the county. A typical estate could incur $1,000 to $2,000 in court costs and other mandated fees.


Advantages Of Probate

One of the main advantages to probate is that a judge supervises the proceedings and thereby protects all beneficiaries' rights. The judge can settle disputes with creditors and between beneficiaries or between beneficiaries and the executor or administrator (both are referred to as the "personal representative" of the estate). There is the assurance that the decedent's estate will be distributed according to the decedent's will or by California intestate laws if no will exists.

In most cases, the personal representative is required to prepare an accounting and report of their activities. There is a cutoff period for any creditor's claims. Any known creditor must be given notice of the probate. Creditors have four months to file their claims. Generally, if they do not file within the specified time period, their claim is barred forever. After probate, the beneficiaries can have peace of mind knowing the assets they received are free from any future claims or actions.

There is no probate cost until death. Therefore, the decedent does not incur any cost during his or her lifetime in contrast to a living trust, where the costs are paid at the time of creation and can be significant. In probate, all costs and fees are paid after death out of the estate before anything is transferred to the heirs.


California Probate Alternatives

In California, there are alternatives to a formal probate. Some of these are:

If the total gross value of a deceased person's personal property does not exceed $150,000, an affidavit procedure may be used on behalf of the beneficiaries to avoid a "full" probate. This is for personal property only, and does not generally include real property.
If the gross value of a decedent's real property does not exceed $20,000, an affidavit procedure can be used on behalf of the beneficiaries to avoid a "full" probate.

If the surviving spouse or registered domestic partner is the sole heir to all or part of the decedent's estate, they may file a special petition to avoid a formal probate. This method is faster and less expensive than a formal probate.


Answers To Frequently Asked Questions About Probate

What is a probate asset?
Assets held only in the name of the decedent are generally probate assets. An asset is not counted as a probate asset, however, if it is owned in joint tenancy (but not if it is owned in tenancy in common) or if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be added to the estate and probated. If there is a surviving spouse, a formal probate can usually be avoided with a spousal property petition.

What does the personal representative do?
The personal representative is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent's closest relatives have the highest priority to become administrator of the estate. Depending on the circumstances, this person may be called an executor, administrator, personal representative, or administrator with will annexed.

How does the probate begin?
It begins with the filing of a petition for probate at the Superior Court in the county in which the decedent lived. The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether bond will be required.

Who decides whether the petition will be approved?
The decision is made by the judge who hears the case, but the preliminary work is done by a court staff member who is called the probate examiner. The probate examiner reviews the file, makes certain that state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner or an interested party disagrees with the recommendation, a hearing will be held to give the petitioner and the objector a chance to present his or her case.

How long does an average probate take?
If the probate has no unusual problems, it can be concluded in about six to eight months. That period includes a four-month creditor's claim period and the time it takes after a petition is filed before it is actually heard. Due to crowded court calendars, hearings are often held four to six weeks or more after an initial petition is filed. There may be other problems with creditors, taxes, or will contests that will delay the probate for longer periods.

Who will receive a notice that the probate is being started?
State law requires that notices be sent to all of the heirs of the decedent, beneficiaries who are mentioned in the will, and proposed executors. The notice will state the date and time of the hearing and the courthouse where the case will be heard.

What happens in court in a probate?
In most counties, if the case has been approved by the probate examiner's office, and no one has indicated that they intend to contest that decision, the hearing is minimal and a court appearance is not necessary. The judge calls the names of the cases on the "approved list." If no one stands up to object when the case is called, the order will be signed without having to hear testimony. If you want to raise an objection to the petition, it is necessary to call the probate examiner's office, or the attorney for the opposing side, to make your objection known before the hearing.


Tips For Avoiding Probate Contests And Estate Disputes

A will or trust dispute can result in a significant delay in the distribution of a decedent's assets and can also become rather expensive. The executor must pay the cost of litigation for a will contest out of the proceeds of the estate, which could significantly deplete the beneficiaries' shares. Here are some suggestions for preventing disputes among beneficiaries:

Make a list of special gifts
If you have a living trust or will, you can make a list of particular special gifts and who you want to receive them in order to avoid a later dispute. This list should be as specific as possible, describing the item in detail with a date and your signature.

Discuss the items with your beneficiaries
Your children, family members, or friends may have already expressed interest in a specific item that has special meaning to them. Therefore, you should consider giving gifts away during your lifetime, especially if it is something that you no longer need or may become a disputed item after your death.


Administration Of Trusts

As an executor, administrator, heir or beneficiary, you may be unfamiliar with the probate process, but with the help of an estate attorney the administration should go smoothly. Executors and administrators need to keep the probate moving forward as the beneficiaries will want to receive their bequests at the earliest possible date. Taxes have to be paid and creditors may put claims on the estate. Heirs and beneficiaries want to be kept informed and generally desire a quick conclusion to probate. If a trust is to be administered, the trustee needs to manage money, fend off creditors, and deal with tax issues.


Estate Planning

Planning ahead regarding estate issues is very important as a person decides how their assets are distributed upon their death. There are certain steps that can be taken to protect heirs and preserve estates. Effective estate planning can encompass the drafting of a will, powers of attorney, a trust, disability protection, and estate tax planning techniques. Many parents also want to protect their children's inheritance from the threat of divorce, lawsuits and bankruptcy. Call our San Francisco office at 415-781-6500 to learn more.