What is probate?

When a loved one passes away and leaves assets that were not in a trust, there is a possibility that those assets will need to go through probate court so that they can be distributed to the beneficiaries. While your loved one may have a will, it is not enough to prevent probate. However, a will may be admitted into probate court so the assets can be distributed according to the decedent’s wishes. Otherwise, assets subject to probate are distributed according to California’s intestate succession laws (the decedent’s closest blood heirs).

As part of probate administration, an individual (usually a family member) will need to petition the court to be appointed as the personal representative of the estate. As the personal representative, that individual has fiduciary duties to the estate and the beneficiaries. Those duties include, but are not limited to, marshalling estate assets, filing an inventory and appraisal with the court, conducting a notice of death by publication, ascertaining creditors, selling property, and conducting a final accounting.

The personal representative needs to keep the beneficiaries informed and provide proper notice to them. Additionally, the representative must inform the beneficiaries regarding any information that might affect their rights. This is especially important when it comes time to performing an accounting of the assets.

While the decedent’s will may list you as a beneficiary, those gifts may not be distributed to the beneficiaries until the probate administration is completed and the court signs an order permitting the assets to be distributed.

Losing a loved one is hard enough. Having to go through probate can be a complicated and time-consuming process. Our experienced attorneys are here to help guide you through the probate administration every step of the way so that you can spend time with loved ones instead of worrying about probate.

How do I know if I need to start a probate for a loved one?

As of April 1, 2022, if someone who is domiciled in California with assets worth $184,500 or more, or if someone owns assets in California that are worth $184,500 or more, a probate will likely be necessary to transfer the decedent’s assets to their heirs. However, not all assets are subject to probate (as discussed below). Additionally, if your loved one passed away prior to April 1, 2022, the $184,500 threshold may not apply because the determination for probate is adjusted periodically for inflation.

Are all assets subject to probate?

Not all assets need to go through probate. The following assets are generally not required to go through probate:

Assets that are held in joint tenancy (including real estate) where there is a surviving individual in the joint tenancy relationship.

  • Accounts that have surviving beneficiaries listed, including bank accounts, brokerage accounts, life insurance, and retirement accounts.
  • Assets that are held in a trust. 
  • Assets listed under Probate Code section 13050 which may include vehicles, vessels, and mobile homes.

How much does probate cost?

Aside from the time it takes to complete a probate, there are significant costs involved as well. The costs that a personal representative needs to pay include, but are not limited to, court filing costs, publication costs, costs for conducting an inventory and appraisal, the cost of obtaining a bond, costs for certified letters, and recording costs.

In addition to the costs, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate pursuant to Probate Code section 10810 as follows:

(1) Four percent (4%) on the first one hundred thousand dollars ($100,000) of the estate value.

(2) Three percent (3%) on the next one hundred thousand dollars ($100,000) of the estate value.

(3) Two percent (2%) on the next eight hundred thousand dollars ($800,000) of the estate value.

(4) One percent (1%) on the next nine million dollars ($9,000,000) of the estate value.

(5) One-half of 1 (0.5%) percent on the next fifteen million dollars ($15,000,000).

(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

To put this in perspective, if the value of a decedent’s estate is $500,000, then the attorney’s ordinary fees under Probate Code section 10810 will be $13,000 (this is calculated by taking $4,000 from the first one hundred thousand dollars + $3,000 from the next one hundred thousand dollars $100,000 + $6,000 from the next two hundred thousand dollars).

In addition to the ordinary fees that an attorney is entitled to, certain probates may occasion the need for an attorney to receive extraordinary fees when a probate is more complex in nature.

How can I avoid a probate?

The best way to avoid probate is to create a trust and fund the trust with your assets. However, it is not enough to merely create a trust – your property (especially real property) needs to be titled in the name of the trust to avoid probate.

If you have questions about probate or forming a trust, please contact one of our experienced attorney’s for a consultation.

Probate FAQ

Probate is the legal process through which a deceased person’s assets are distributed and their final affairs are settled under the supervision of a court. It involves validating the deceased person’s will, if one exists, and ensuring that their debts and obligations are paid before their assets are distributed to beneficiaries. Probate may be required when an individual passes away with assets solely in their name, without a designated beneficiary or joint owner. The exact rules and procedures for probate vary depending on the jurisdiction and the complexity of the estate. However, certain assets, such as those held in a trust or with beneficiary designations, can bypass probate. While probate serves as a method to settle an estate, it can be time-consuming and costly, often prompting individuals to engage in estate planning to minimize its impact on their assets and beneficiaries.

The role of a personal representative, also known as an executor or administrator, is pivotal in the probate process. This individual is appointed by the court or named in the deceased person’s will to manage and oversee the administration of the estate. Their responsibilities encompass a range of tasks, including gathering and valuing assets, paying off debts and taxes, filing necessary legal documents, communicating with beneficiaries, and ultimately distributing the remaining assets according to the terms of the will or the laws of intestacy if there is no will. The personal representative acts as a fiduciary, meaning they must act in the best interests of the estate and its beneficiaries, while adhering to legal obligations and ensuring transparency throughout the probate proceedings. The role demands attention to detail, organization, and a keen understanding of legal and financial matters to facilitate a smooth and efficient settlement of the estate.

The duration of the probate process can vary widely depending on factors such as the complexity of the estate, local laws, court schedules, and potential challenges or disputes that may arise. In simpler cases, where the estate is straightforward and uncontested, probate proceedings could conclude within several months to a year. However, in more intricate cases involving significant assets, disputes among beneficiaries, or complex legal issues, the probate process might extend for multiple years. Delays can also occur if there are complications with valuing and selling assets, settling debts, or resolving tax matters. Engaging in proactive estate planning, utilizing trusts, and taking measures to minimize the need for probate can often help expedite the process and reduce the time and costs associated with probate proceedings.

Assets that go through probate are typically those that are solely owned by the deceased person and lack beneficiary designations or joint ownership. These can include real estate, personal property, bank accounts, and investments held solely in the deceased person’s name. However, certain assets can bypass probate. These include assets held in a living trust, as they are managed by the trustee and not subject to probate court. Additionally, assets with designated beneficiaries, such as life insurance policies, retirement accounts, and payable-on-death (POD) or transfer-on-death (TOD) accounts, pass directly to the beneficiaries without going through probate. Jointly owned assets with rights of survivorship, such as joint bank accounts or real estate, also avoid probate as they automatically transfer to the surviving owner. By structuring an estate plan to incorporate these non-probate assets, individuals can streamline the distribution process and potentially reduce the time and costs associated with probate proceedings.

Yes, the probate process can often be avoided or minimized through proper estate planning strategies. By utilizing tools like living trusts, individuals can transfer assets into the trust during their lifetime, allowing those assets to bypass probate upon their passing. Assets held within a trust are managed by a designated trustee and can be distributed according to the terms of the trust document, avoiding the need for court involvement. Additionally, naming beneficiaries for accounts like life insurance policies, retirement accounts, and payable-on-death (POD) or transfer-on-death (TOD) accounts can ensure that these assets transfer directly to beneficiaries without going through probate. Carefully planning the ownership of jointly held assets with rights of survivorship can also help them pass to the surviving owner without probate proceedings. By incorporating these strategies into their estate plan, individuals can potentially save time, reduce costs, and maintain greater privacy for their assets and beneficiaries.

The probate process involves several main steps. Firstly, the court validates the deceased person’s will, if one exists, and appoints a personal representative or executor to manage the estate. The representative then identifies and gathers all assets owned by the deceased, takes inventory, and values them. Debts, taxes, and expenses are paid from the estate’s funds. Next, beneficiaries and potential creditors are notified, and any claims against the estate are addressed. Once debts are settled, the remaining assets are distributed to beneficiaries according to the terms of the will or the laws of intestacy. Throughout these steps, the personal representative is responsible for filing necessary documents, communicating with relevant parties, and ensuring that the estate’s affairs are handled transparently and in compliance with the law. The probate process concludes with a final accounting, where the representative provides a detailed report of the estate’s financial transactions to the court. Upon approval, the assets are distributed, and the estate is officially closed.

During the probate process, debts and creditors are handled systematically. The personal representative or executor is responsible for identifying and notifying creditors of the deceased person’s passing, giving them an opportunity to submit claims against the estate for any outstanding debts. The representative evaluates these claims to ensure their legitimacy and validity. Debts are then paid from the estate’s funds, prioritizing them based on legal requirements. This can include funeral expenses, administrative costs, taxes, and outstanding debts. If the estate’s assets are insufficient to cover all debts, the estate’s assets may be liquidated to pay off creditors. It’s important to note that not all debts and claims are necessarily valid or legally enforceable, and the personal representative plays a key role in ensuring that the estate’s resources are appropriately allocated to settle legitimate obligations while safeguarding the interests of beneficiaries.

If someone contests a will during probate, they are essentially challenging the validity or terms of the will in court. Contests can arise due to concerns over the mental capacity of the deceased person when the will was created, allegations of undue influence, claims of fraud, or disputes regarding the interpretation of the will’s provisions. When a will is contested, the probate process may be delayed as the court examines the evidence and arguments presented by both sides. The court will evaluate the validity of the claims and make a determination on whether the will should be upheld, modified, or invalidated. Contested probate cases can be complex and emotionally charged, often requiring legal representation and extensive litigation. It’s important for all parties involved to consult legal professionals to navigate these situations and ensure that the deceased person’s wishes are upheld while respecting the legal rights of potential beneficiaries and claimants.

The main difference between formal and informal probate proceedings lies in the level of court involvement and complexity. Formal probate proceedings involve a more comprehensive oversight by the court, requiring hearings, notices, and potentially more legal steps. This process is often employed when the validity of a will is being contested, when there are disputes among beneficiaries, or when complexities arise that demand court intervention. On the other hand, informal probate proceedings are less formal and streamlined, typically used when the estate is straightforward, uncontested, and meets specific legal requirements. Informal probate may involve minimal court appearances and procedural requirements, making it a quicker and more cost-effective option. The choice between formal and informal probate depends on the circumstances of the estate and the potential challenges that may arise during the probate process.

Taxes are a significant aspect of the probate process, and they can encompass various types of taxes, including estate taxes, inheritance taxes, and income taxes. Estate taxes are imposed on the overall value of the deceased person’s estate and are paid by the estate itself before distribution to beneficiaries. The threshold for triggering estate tax liability varies based on the jurisdiction and can be influenced by exemptions and deductions. Inheritance taxes, if applicable in some regions, are paid by beneficiaries on the assets they inherit, based on the relationship between the deceased person and the beneficiary. Income taxes may arise if the estate generates income during the probate process or if beneficiaries receive taxable income from assets they inherit. Accurate valuation of assets and proper tax reporting are crucial to ensure compliance with tax laws and to prevent potential penalties. Estate planning and consulting with tax professionals can help mitigate tax liabilities and optimize the distribution of assets to beneficiaries.

Handling probate on your own, also known as pro se representation, is possible in some cases, especially if the estate is small and straightforward, and if you have a good understanding of legal and financial matters. However, probate can be a complex and legally intricate process, involving various tasks such as navigating court procedures, resolving potential disputes, managing assets, and ensuring compliance with tax laws. Consulting an experienced probate attorney can provide invaluable guidance to help you navigate these challenges, ensure that all legal requirements are met, and minimize potential errors or oversights. Attorneys can provide tailored advice, help expedite the probate process, and ensure that the interests of the deceased person and their beneficiaries are protected. Depending on the complexity of the estate and the specific circumstances, seeking professional legal assistance can offer peace of mind and help you efficiently navigate the complexities of probate.

The potential costs associated with the probate process can vary based on factors such as the size and complexity of the estate, local laws and court fees, legal and professional fees, and potential disputes or challenges that may arise. Common costs can include court filing fees, attorney fees, personal representative fees, appraisal fees for valuing assets, accounting fees for recordkeeping, and potential costs related to resolving creditor claims or contesting a will. Larger estates with significant assets or complex financial arrangements may incur higher costs, as they often require more time, legal expertise, and administrative efforts to ensure a smooth probate process. Engaging in proactive estate planning, utilizing tools like living trusts, and consulting with professionals can help mitigate potential costs and streamline the probate process, ensuring that the estate’s assets are efficiently managed and distributed according to the deceased person’s wishes.

In some cases, beneficiaries may be able to receive a portion of their inheritance before the probate process is complete, particularly if the estate’s assets are straightforward and liquid. This process is often referred to as an “early distribution” or “partial distribution.” However, the availability of early distributions can vary depending on local laws, the specific circumstances of the estate, and the court’s approval. Personal representatives or executors need to ensure that the estate has sufficient assets to cover debts, taxes, and potential expenses before distributing any assets to beneficiaries. Consulting with legal and financial professionals is crucial to ensure compliance with applicable laws and to make informed decisions that balance the beneficiaries’ needs with the proper administration of the estate.

Probate can become more complex when the deceased person had property in multiple states, a situation known as “ancillary probate.” Each state in which the deceased person owned property typically has its own probate laws and requirements. In such cases, the primary probate process occurs in the state where the deceased person was a resident at the time of their death, known as the domicile state. This state handles the main administration of the estate and distributes assets according to the will or laws of intestacy. However, if there are properties located in other states, ancillary probate proceedings may be necessary in those states to transfer ownership and address local legal requirements. Ancillary probate proceedings can involve additional legal fees, administrative complexities, and potential delays. To navigate this situation efficiently, it’s advisable to consult with legal professionals who are familiar with the laws and procedures in each relevant jurisdiction.

If you believe you have been wrongfully excluded from a will during probate, there are certain steps you can consider taking. First, gather all relevant documentation, including the will, any prior versions of the will, and any evidence that supports your claim of being wrongfully excluded. Consult an experienced probate attorney to review the situation and advise you on the best course of action. The attorney can help you understand the legal grounds for contesting the will, guide you through the process, and represent your interests in court if necessary. Be prepared to engage in negotiations or mediation with other beneficiaries or parties involved to potentially reach a resolution without the need for litigation. Challenging a will can be legally complex and emotionally challenging, so seeking professional guidance is crucial to ensure that your rights are protected and your claim is appropriately addressed.