Getting it Right, Now.
What is probate?
Probate is a state court proceeding whereby a decedent’s estate is inventoried and distributed in accordance with state law (i.e. the California Probate Code). Put simply, probate is “proving the will” through a court proceeding. If there is no will, a decedent’s property will be distributed, through the same process, to the heirs of the decedent as provided under state law. Probate offers the legal framework and process to determine the assets of the decedent, settle creditor claims, and to ensure the decedent’s assets are properly distributed to the rightful heirs.
- Executor: An executor is the person named in the decedent’s will to administer the estate.
- Administrator: If the decedent had no will, this is the person legally vested with the right to administer the estate. This is the equivalent of a court appointed executor.
- Intestate: Refers to the situation whereby a person dies without a will or other valid testamentary document. .
- Beneficiary: A person named to receive proceeds or benefits from the decedent’s estate.
- Heirs: Any person, including a surviving spouse, who is entitled to take property of the decedent under the laws of intestate succession.
- Issue: All of the decedent’s lineal descendants of all generations.
- Probate Estate: All of the decedent’s property that is required to go through probate.
How expensive is probate?
Probate is typically quite costly. Any estate with a value of more than $150,000, or with real estate valued at more than $50,000, without proper planning, is likely subject to probate. The minimum probate statutory attorney fee of an estate with a value of only $150,000 is $5,500. The executor or administrator is entitled to the same fee. So, a simple estate of $150,000 will result in fees of $11,000. These fees do not include additional costs such as filing fees and other court costs associated with the probate process.
How long does probate take?
In addition to being expensive, the probate procedure can also be very time consuming. Probates can range from six months to several years depending on the complexity of the estate. Because of the budget issues in the state of California, probate cases often take over a year to complete.
Does all of the decedent’s property have to go through probate?
The probate estate does not necessarily include all of the assets that the decedent owned. Generally, there are certain assets that will likely not need to be probated including:
- Property held in joint tenancy
- Life insurance, as long as there is a beneficiary designation, and the beneficiary is alive
- Pensions with a proper beneficiary designation
- Bank accounts that are payable on death to a designated beneficiary
- IRAs with named beneficiaries
- Often property passing to a surviving spouse
- Assets properly titled in a living trust
However, the best way to avoid probate is by doing some simple estate planning, including creating, and properly funding, a living trust. If a decedent’s assets have not been properly titled in the name of the trust (or the trust is not designated as the beneficiary of the asset) probate will likely be required.
If you need assistance with a probate matter or have questions about administering an estate, please contact us to schedule a complimentary consultation at (714) 581-8808.