Frequently Asked Questions About Probate

What is probate?

The legal process of distributing a deceased person’s assets and property as decided by the court system (typically to the closest living relatives), after any money that is owed to the government or creditors is paid.

What happens during probate?

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.

How long does a California probate proceeding take?

Probate is a complicated issue with many moving parts involved and it can last anywhere from eight months to several years, if the estate is challenged by family members at odds with the process. Typically, probate will take about a year, but the exact factors for determining a timeline will depend on each person’s unique situation.

How much are the attorney’s fees?

Fees are awarded on a statutory formula as set forth in Probate Code section 10810.  As attorney for the estate, the attorney is 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.

When will our family receive property or assets?

The probate court will not enter an order of distribution allowing assets and property to be transferred to waiting beneficiaries until all debts have been paid (including court fees and estate taxes) and the estate is in a condition to be distributed.  Again, the timeline will depend on many factors and beneficiaries will have to wait at least eight months after the probate process is started. 

What is not subject to probate?

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.

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The Law Offices of David A. Arietta
700 Ygnacio Valley Road
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Walnut Creek, CA 94596