The probate and trust administration practice is an extension of the estate planning practice. David is a certified specialist in estate planning, trust and probate law and is able to effectively represent administrators, executors, and trustees in the administration of estates. We deal with simple and complex probates and help guide personal representatives through the process from the initial lodging of the will to the inventory stage to the accounting stage and through to final distribution and closing of the estate. We also help trustees deal with the requirements to administer a trust after the death of the settlor, including administration for a surviving spouse. We deal with unique and complicated issues in these situations such as real property title disputes, business entity disputes, and creditor claims.
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- Phone: (925) 472-8000
- Fax: (925) 472-5925
- David@AriettaLaw.com
- 700 Ygnacio Valley Road, Suite 150 Walnut Creek, CA 94596
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We handle probates all over California. Probate is a legal process that takes place after a person dies. There might have been a will or the person may have died intestate (without a will). The probate is filed in the county where the person resided. Within 30 days of death, the executor is responsible for lodging the original will with the local probate court and then filing the necessary papers to open probate. Notice is given to the heirs of the decedent and published in a local paper of general distribution. It is a court supervised process with court hearings that aim to confirm the validity of the will and give the executor the power to manage the estate. The executor must ensure that the decedent’s bills are paid and inventory the decedent’s assets as of the date of death. A court probate referee will then value the assets for the court and the heirs. The executor has the power to sell property, compromise claims, and file tax returns.
After all the property has been collected and sold, the executor can petition the court for approval to make a final distribution. The executor may also have to prepare an accounting of all receipts and disbursements during the pendency of the probate. We provide specific advice to the executor during each stage of the probate.
Probate is generally required if the decedent died with real property in his or her name. There are alternatives to probate, including property held in joint tenancy or property held in a living trust. In addition, if property in the decedent’s name is worth less than approximately $184,500, no probate is required. Assets with proper beneficiary designations, such as IRA’s, life insurance, and 401K’s, are not subject to probate. The specific titling of assets can yield different results in different situations.
For those that die with property in a living trust, we assist the successor trustee in administering the trust according to the wishes of the decedent. We help the trustee with noticing the beneficiaries, collecting assets, and eventually distributing the trust assets. The trustee is responsible for managing the estate, selling assets, filing tax returns, preparing an account, and making a final distribution according to the terms of the trust. Each situation is different and can be especially complicated if there are multiple parcels of real estate, pending lawsuits, creditor claims, and contesting beneficiaries. We provide specific advice to the trustee during each step of the process.
Contact us at (925) 472-8000 for more information or if you have questions.
Beyond his legal practice, David A. Arietta is deeply committed to serving his community.
In addition to his bankruptcy practice, David A. Arietta offers comprehensive estate planning services to individuals and families seeking to protect their assets and ensure their wishes are carried out effectively.
Probate is a court-supervised process of validating a will as authentic, paying all debts and claims (including taxes) against an estate, and distributing what’s left to the beneficiaries.
A representative, either the executor named in the will or an individual named by the probate court, will be appointed to disperse real and personal property. This individual also collects debts owed to the deceased. The will is validated by the probate court. If there is no will, then the probate court designates a legal heir (usually a close relative) to serve as administrator. A list of assets from the estate are presented to the probate court. Beneficiaries named in the will, or heirs-at-law if there is no will, are notified that the probate process is taking place. Creditors are notified of the proceedings so they can file claims for any debts owed to them. State and federal taxes are paid from the estate. Title to decedent’s property, such as real estate, bonds and stocks, is cleared so that the property can be passed onto beneficiaries or sold.
A California probate case typically takes between 9 months and 1.5 years, but it can take longer, especially when real estate needs to be sold.
Not necessarily. Some types of property do not pass through probate because of how property is titled. If property is owned in joint tenancy, or community property with right of survivorship, or if it’s a bank account owned by several people, or a bank account with a payable on death beneficiary, then none of those would be subject to probate because they pass automatically to the survivor.
If the estate is worth less than $150,000 then probate may not be necessary. There is a simplified process that may be applicable; however, it cannot be used for real property such as a home. If the decedent’s property is worth over $150,000, then probate is required.
Some examples of property that is not subject to probate includes: payable on death bank accounts, life insurance policies that name a beneficiary, property owned in joint tenancy or community property, retirement accounts with beneficiaries, and property held in a trust.
The person holding the decedent’s will must take the original will to the probate clerk’s office within 30 days of the decedent’s death. If the custodian of the will does not do this, he or she can be sued for damages caused.
Any jointly held property or assets with the right of survivorship (which means ownership is transferred over once someone passes away). However, the property will eventually pass through probate once the surviving owner passes away. Estates with assets valued at under $150,000 are also not required to pass through probate. There is a declaration process to deal with those small estates. IRA or retirement accounts with a designated beneficiary and life insurance policies with a designated beneficiary are not subject to probate either.
My fees are awarded on a statutory formula as set forth in Probate Code section 10810. As attorney for the estate, I am entitled to compensation based on the value of the estate accounted for by the executor as follows: 4% of the first $100,000, plus 3% of the next $100,000, plus 2% of the next $800,000. Please note that Section 10811 gives a court the discretion to award additional compensation for extraordinary services, if necessary. Most cases do not require extraordinary services. I request an advance of $1,000.00 to be paid before the probate case is filed. This amount will be used for filing fees and other costs. This amount will not be applied to any attorney’s fees.