ESTATE PLANNING   |   PROBATE   |   WILLS AND TRUSTS

PROBATE.

What is Probate?

  • probate_planning_casketProbate is the common term used to describe the court administration of a deceased person’s estate.
  • Decedents leaving assets subject to administration must have their estate probated.
  • A Will does not avoid probate … in fact, to be effective in most cases, the Will must be probated. Indeed, the term “probate” is derived from the French term for “prove,” for “proving the Will.”

What Is The Purpose of Probate?

It is the statutory procedure of appointing a person (Executor or Administrator) to be responsible for

  1. collecting or marshaling the decedent’s property,
  2. paying the decedent’s bills and taxes and then
  3. distributing the remaining property in accordance with the decedent’s wishes as set forth in the Will or pursuant to state law if there was no valid Will.

How Does The Probate Process Work – What Are The Required Procedural Steps?

Listed below are the minimum procedural steps required for all probates. Depending on the circumstances, additional procedures are frequently required.

  1. Petition for Probate filed in Superior Court.
  2. Notice of Hearing mailed to all heirs and beneficiaries.
  3. Notice of Death (notice to creditors) published in newspaper.
  4. Hearing held in Superior Court.
  5. Bond purchased for fiduciary, if necessary.
  6. Letters Testamentary or Letters of Administration issued.
  7. Inventory of assets prepared.
  8. Claims against the Estate received, approved or rejected and filed with the Court for confirmation, approval or rejection.
  9. General management matters, (e.g. establish separate bank accounts, file income tax returns, invest estate assets).
  10. Assets on Inventory appraised by probate referee.
  11. Death taxes, if any, determined and paid.
  12. First and Final Accounting prepared.
  13. Petition for Final Distribution filed.
  14. Notice of Hearing mailed to all heirs and beneficiaries.
  15. Hearing held in Superior Court.
  16. Decree of Final Distribution entered by Court and recorded, if necessary, at County Recorder’s Office.
  17. Receipts from beneficiaries filed with the Court along with the Fiduciary’s Affidavit for Final Discharge.
  18. Final Discharge and release of bond issued.

How Much Time Does Probate Take?

  • Each estate is different. However, the minimum is about seven months, but the average is about a year and can take longer if real property needs to be sold prior to distribution.
  • Once the Executor or Administrator is appointed he or she should provide notice to creditors, which limits the time a creditor has to make a claim against the estate to four (4) months. When estate taxes are payable, the estate is frequently extended until past the last day for payment of the taxes (nine (9) months after the date of death, unless extended).
  • Frequently the estate lacks liquidity or property must be sold, which will extend the time involved.
  • When an estate is contested or there is other on going litigation, the estate cannot close until such matters are resolved. Then a probate can takeyears to resolve.

What Does Probate Cost?

The personal representative (Executor or Administrator) and the attorney are each entitled to a fee set by statute ( see schedule below). If extraordinary services are performed, the court will allow a reasonable fee to each, in addition to the statutory fee. Requested extraordinary fees are submitted to the Court for approval. Common “extraordinary” services include sales of real property, preparation of tax returns, and matters involving litigation. In addition to statutory and extraordinary fees, there are other hard costs that include: court filing fees, publication expenses (Notice of Death), bond premiums (if required) and appraisal fees.

Computation:

  • 4 percent of first $100,000
  • 3 percent of next $100,000
  • 2 percent of next $800,000
  • 1 percent of next $9,000,000
  • 0.5 percent of next $15,000,000
  • Reasonable amount above $25,000,000
Probate Estate* Executor’s Commission Attorney’s Fee Total Fees
$100,000 $4,000 $4,000 $8,000
$200,000 7,000 $7,000 $14,000
$300,000 $9,000 $9,000 $18,000
$400,000 $11,000 $11,000 $22,000
$500,000 $13,000 $13,000 $26,000
$600,000 $15,000 $15,000 $30,000
$700,000 $17,000 $17,000 $34,000
$800,000 $19,000 $19,000 $38,000
$900,000 $21,000 $21,000 $42,000
$1,000,000 $23,000 $23,000 $46,000
$1,500,000 $28,000 $28,000 $56,000
$2,000,000 $33,000 $33,000 $66,000
$3,000,000 $43,000 $43,000 $86,000
$4,000,000 $53,000 $53,000 $106,000
$5,000,000 $63,000 $63,000 $126,000
$10,000,000 $113,000 $113,000 $226,000

*Probate Estate – generally the probate estate includes the gross value of real estate, business interests, investments, bank accounts, personal property, and household goods. It generally does not include retirement accounts**, life insurance**, or assets placed in living trusts.

** Assets where “my estate” is listed as the designated beneficiary will be included in the “probate estate”. If minor children are listed as the designated beneficiary and they become the beneficiary of the asset while they are still a minor, they cannot legally inherit it. A guardianship of the estate will need to be set up for them before they can receive the asset.

California Estate Planning Law Firm

If a family member has recently died owning property in California, we strongly encourage you to contact the experienced attorneys of the law firm of Michelle A Goff today. We will handle the legal matters on your behalf so that you can focus on taking care of your family during its time of loss. The law firm of Michelle A Goff Law Group represents executors, personal representatives, administrators, and beneficiaries in probate matters to assist an executor or administrator in navigating the complexities of their fiduciary role to protect a beneficiary’s interest.