What is probate?

Probate is a court-supervised process that ensures a will or estate is properly administered. The executor or administrator assumes control over all assets and makes sure that bills are paid. Through probate, will contests are resolved, estate and income taxes are reconciled, and property is distributed according to the instructions in the will. If a will is not available, property is distributed according to the law. The actions of the executor or administrator are overseen by the probate court to assure all rules, procedures, and the intent of the decedent are followed.

The probate process can take anywhere from six months to two years. Fees are paid to the attorneys and executors based on a percentage of the estate’s value.

Attorney’s fees and costs are set by law in California and are based upon the value of the estate. The statutory fee schedule in California is as follows:

  • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% of the next $9,000,000

Because probate can be expensive and time-consuming, it is worth investigating alternatives to probate. In California, the most common alternatives to probate are a spousal property petition (if there is a surviving spouse) or a small estate transfer (if the value of the estate is less than $100,000). If these or other alternatives to probate are unavailable, then the decedent’s heirs should file a probate proceeding.

Probate administration is necessary when an individual dies with over $100,000 in assets in their name alone. If the person had a will, he or she died “testate.” If the person died without a will, he or she died “intestate.” In either case, a probate must be established in the county where the person lived. If the person lived out of state, probate must be established in the county in which he or she owned real property.

These are some situations when a probate may be preferable to a trust administration.

Probate Administration With a Will

The decedent’s will typically names beneficiaries, the executor, and may make specific gifts of identifiable property.

After the executor is identified or appointed and letters testamentary are issued, there is a creditor’s period of 120 days during which any creditor of the decedent may file a claim with the executor for payment of debt alleged to be owed. Bills must be paid and property sold, if necessary. When all of these actions are completed, the court is petitioned to allow the executor to complete the probate and distribute the remaining assets to the beneficiaries.

Probate Administration Without a Will

Without a will, a decedent’s estate is handled based on California law. All or a portion of the estate goes to the spouse and a portion may go to children or a parent, depending on the character of the property (community or separate). If there is no spouse, the property generally goes to the children and issue (offspring) of any deceased children. If there is no surviving spouse or children, property passes to the decedent’s parents or surviving siblings. If they also do not survive, then the assets go to the nearest living relatives.

A person can petition to be administrator of the decedent’s will. The law determines the approval of such a request, depending on the person’s relationship to the decedent. Spouse receives first consideration, then children, and so forth. The California probate code provides rules for probate administration. This form of administration is similar to that where the decedent had a will, except that the probate code determines who gets the property and who may become the administrator.

What are the benefits and drawbacks of probate?

In some cases, probate is actually preferable to other means of estate administration. The benefits and drawbacks of different types of estate administration depend on the particular circumstances of each case.

One of the benefits of a probate is that the procedure is open and monitored, which can mean fewer irregularities, misunderstandings, and therefore, fewer disputes. Also, the cost of a probate administration is fixed so the attorney(s) will not be charging by the hour.

Our office provides services related to probate. To learn more, please contact us.