Probate FAQ

Q: Does an estate always have to be probated?
Q: What are probate assets?
Q: How does a probate begin?
Q: What is an executor?
Q: How is a probate petition approved?
Q: How long does probate take?
Q: Will I receive notification of a probate I am involved in?
Q: What are the probate fees in California?

After the death of a loved one, their estate is distributed according to a will or court-appointed administration. In either case, the assets of the deceased are gathered and prepared for distribution. This process is known as probate , and the laws regarding probate procedure vary from one state to another. Many questions may arise during the process, especially in how to avoid a prolonged ordeal and extra costs.

To understand the legal process of probate law in California and work to avoid extra cost during the procedures, retain an experienced Orange County probate attorney.

Does an estate always have to be probated?
There are several situations where probate may not be necessary. For example, if the assets of the deceased are in joint tenancy with someone else, survivorship property, or a living trust, those assets do not require probate. Assets can also be transferred to domestic partners through Spousal Property Petitions. If the total value of an estate that cannot be transferred to inheritors is smaller than $150,000, the estate does not have to be probated.

What are probate assets?
Most assets held in the name of the deceased are generally considered probate assets. Assets may not be probated if they are owned in joint tenancy, living trusts, or other legal transfer agreements. If an asset is not designated for distribution by a legal arrangement, it is considered a probate asset.

How does a probate begin?
Probate cases begin by filing a petition for probate at a probate court. Usually, this court must be in the county where the decedent lived. The petition provides information about the decedent, executor, heirs, and the estate.

What is an executor?
Also known as an administrator or personal representative, an executor is responsible for managing the probate estate, including inventory preparation, tax filings, bill payments, and estate distribution. Executors are either nominated in a will or appointed by a probate court. California state law allows that, without a named executor, the deceased's closest relatives have the highest priority to be nominated as executor.

How is a probate petition approved?
Court staff members called probate examiners review the file and ensure the petition complies with state laws. They make a recommendation to the judge about whether to approve or deny the petition. The judge makes the decision about whether to hear the case or not. If a petitioner disagrees with the judge's decision, they may be able to hold a hearing to present a case for reversing the decision.

How long does probate take?
Without any unusual problems or contests, probate may conclude in eight to twelve months. This accounts for a four-month claims period for creditors as well as the time it takes for a filed petition to be heard. A probate case with difficult issues or multiple contests could take more than a year to complete.

Will I receive notification of a probate I am involved in?
California state law requires notices to be sent to all heirs, beneficiaries, and proposed executors. The notice will have information on the date and time of the hearing as well as the courthouse that the case will be heard in.

What are the probate fees in California?
California statutes set out a "statutory fee" that allows attorneys to charge a percentage of the asset value instead of charging by the hour or a flat fee. The rates vary depending on the gross value of the estate. This may affect how high attorney fees are in a case.

The statutory fee percentage rates include the following:

  • 4% of first $100,000 of gross estate value
  • 3% of next $100,000
  • 2% of next $800,000
  • 1% of next $9 million
  • .5% of next $15 million

A Mishandled Probate May Cost You More

The probate process may take months, or it may take years, depending on the complexity of the case and probate contests. Retaining an attorney may lead to extra expenses, but improper handling of a probate case may also lead to unexpected and unnecessary costs to all parties involved. Our Orange County probate lawyers have nearly 25 years of experience and seek to offer flexible payment options for our clients. If you are seeking valuable legal guidance with affordability in mind, contact our firm today!

Categories: Estate Planning
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