Probate

What is probate?

Probate is a court process similar to a lawsuit, which is used to finalize a person’s legal and financial affairs after death. Probate can be administrative or adversarial in nature. If you choose to have your estate probated, there is no way of controlling or knowing in advance which type of probate you will have.

Is probate a long process?

Probate can be a very long process and can delay when a beneficiary will receive any payments. In California, probate proceedings are conducted by the Superior Court and take at least six months.  However, they can sometimes take several years.

What does the probate process look like?

The process begins by the executor filing a petition with the Superior Court of the State of California. If there is no will, the Court will decide who is to become executor. If the will is contested, the Court will resolve all legal and factual issues. If there is no will, or if the will is contested, there is no way to determine how the court will decide.  Your estate wil essentially be in the hands of a total stranger.

What is the Executors role in an estate plan?

Subject to the Court’s scrutiny, the executor must make a thorough inventory of all of the estate’s assets, locate creditors, continuously find and pay all bills, and file any and all required tax returns. In addition, the executor must continue as a fiduciary to continuously manage the estate’s assets throughout the probate process.

When the executor believes all of his duties have been completed to the Court’s satisfaction, he must file another petition with the Court. If, and only if, that petition is granted, the executor may then begin distributing the assets to the heirs. The executor must then file an additional final tax return.

How much does probate cost?

The Court itself charges fees for probate on behalf of the State of California. Additionally, fees are also charged for publications, executor bonds, appraisals, accounting, and more. For example, probate referees receive a fee equal to one-tenth of a percent of all assets in the estate. These fees, which can be thousands of dollars, are minor compared to the costs for attorneys and executors.

How do executors and attorneys get paid?

Attorneys and executors are paid from the estate’s assets itself – in other words, by you. Attorneys and executors fees are set by legislators and are calculated as an overall percentage of what the Court deems to be the estate’s total value.  This estate value is based on the report of an appraiser who is appointed by the Controller of the State of California.

Estate Value Probate Attorney & Executor Fees

Estate Value

  • $100,000
  • $200,000
  • $500,000
  • $800,000
  • $1,000,000
  • $1,500,000
  • $2,000,000

Probate Attorney & Executor Fees

  • $8,000
  • $14,000
  • $26,000
  • $38,000
  • $46,000
  • $56,000
  • $66,000

The value of the estate is determined by the inventory for the estate. Debts are not included in determining attorney’s fees.  For example, if a house is valued at $1,000,000, it is considered a $1,000,000 asset for the purpose of calculating attorney’s fees even if there is a mortgage of $900,000!

In addition, attorneys and executors can always ask the Court to award higher fees. Many cases are contested or complicated by lawsuits or tax concerns. In those cases, the court generally grants higher fees to the attorneys and executors.

Is the probate proceeding private?

When a Will is admitted to probate, it becomes public record. Not only does the Will itself become public, but all documents involved in the proceedings become public record and can be viewed by anyone desiring access. Most people do not want their intimate financial decisions and their distribution to certain beneficiaries to become a public document. Often times a will is a private document. Often times a will is a private document that expresses intimate decisions that have a great effect on your family.

How do I avoid probate?

revocable living trust has the ability to avoid probate. It will ensure that assets are transferred much faster to beneficiaries, and it avoids the fees associated with probate. By avoiding probate, your estate remains private, and only your beneficiaries will have access to the entire Trust document.

One of the first steps to gaining control over the future of your estate is knowing the answer to the question, “what is probate?” Now that you know, you can take the next step and get in touch. If you would like to discuss drafting a trust to avoid probate, please call our office and schedule an appointment with Justin M. Gilbert.