What is Probate?
Probate is a court-supervised process that winds up a person’s legal and financial affairs after death, typically when they have not created a properly funded living trust. In California probate proceedings are conducted in the Superior Court for the county in which the decedent lived, and typically take 1-2 years to complete.
At Kaiser Law Group we understand that the death of a relative, loved one or friend is difficult, and that having to deal with confusing laws that prevent you from accessing your loved ones assets can be frustrating, time consuming and costly. That is why Curtis Kaiser, a Board Certified Specialist in Estate Planning, Trust, and Probate law, and his team are committed to providing quality Probate services that minimize the financial and administrative burden to our clients.
We can help with all aspects of probate
- Probate issues related to the death of family member or friend. This is a specialized area of law that our attorneys have in-depth knowledge in.
- Letters of Administration to appoint appropriate individuals to deal with a deceased person’s estate where there is no Will in place, or the Executors named in a validly created Will are either unwilling or unable to act; or Letters Testamentary to appoint individuals named in a validly created Will to deal with a deceased person’s estate.
- Spousal Property Petition after the death of a spouse or registered domestic partner. This petition can be used to transfer community property assets from the deceased spouse or registered domestic partner to the surviving spouse or registered domestic partner.
What Happens During Probate?
The person who is nominated in the will as executor files a petition with the Superior Court asking that he or she be appointed as executor of the estate. If there is no will, the Probate Code provides a list of persons who have priority to petition to become administrator. The will also is filed with the petition, and notices are sent to the heirs and/or relatives to let them know when the hearing will be held. If there are objections to the petition, or if the validity of the will is contested, the hearing will be used to resolve any problems that have arisen. In some cases this may mean that the validity of the will is not upheld, or that some other person than the original petitioner is chosen to administer the estate. In most cases, however, there is no objection and the petition is granted. The executor then makes an inventory of the estate’s assets, locates creditors, pays bills, files tax returns, and manages the estate assets. When all of the duties of the executor are completed, another petition is filed with the court asking that the estate be distributed to the heirs. If this petition is granted, the estate administrated is completed by distributing the assets to the heirs and filing final tax returns.
How Much Does Probate Cost?
The table below reflects the statutory fee for the attorney or the personal representative for various estate values. Therefore, if there is an attorney and a personal representative handling the probate, the fees in the chart should be doubled. For example, a one-million dollar estate handled by an attorney and personal representative would be subject to $46,000 ($23,000 x 2) in fees. By way of comparison, administering a trust funded with one-million dollars in property might only cost $2,000 to $5,000.
In addition to the statutory fees, there are costs for appraisal fees, publication costs, and miscellaneous fees charged by the county. A typical estate might incur $1,000 to $4,000 in court costs and other required fees.
Advantages of Probate
The proceedings are controlled by a judge, who can decide disputes between heirs or between the heirs and the executor. Creditors are required to submit their claims against the estate within a four-month period, provided they have been notified of the probate. For estates with messy creditor situations, probate can be a good way to sort out and finalize creditor claims. The executor is required, in most cases, to prepare an accounting and report of the executor’s activities.
Disadvantages of Probate
The cost is usually much higher than would be required for the administration of a living trust for an estate valued at the same amount. It usually takes longer to probate an estate than to administer a trust. Most estates don’t need the supervision of the court unless disputes occur.