Frequently Asked Questions About Probate

What is probate?

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.

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?

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.

Does all property pass through probate

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.

Do all estates have to go through probate?

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.

What types of property are not subject to probate?

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.

When do I need to start probate proceedings?

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.

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.

How much are the attorney’s fees?

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.

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