Understanding California Probate and Probate Alternatives
What does probate mean? California Probate is a legal proceeding required to settle a deceased person’s estate, paying all debts of the decedent, and distributing the property to the heirs and beneficiaries. When a Living Trust holds the title to some of the decedent’s property, however, that property can pass to the beneficiaries without going through probate. A court probate of a will, depending on the size of the estate, can be expensive and time-consuming. The probate process varies dramatically between states, but can be completely avoided with proper estate planning.
Probate in California
Previously, all estates had to be formally brought before a judge before assets could be distributed to the beneficiaries. In more recent years, however, the courts have simplified the California probate process and now there are several ways to transfer property at death. Some of these procedures do not even require formal court proceedings or may be able to be handled through a more simplified probate proceeding. The term “probate” is often used loosely to describe any process where an estate is settled and distributed.
If you want to file a probate in California, the probate law does not require you to hire an attorney to settle the estate. The average simple estate can often be settled using the guidelines of self-help materials and the services of a registered legal document assistant to prepare your probate paperwork. This video testimony is from a customer who used our California probate services. Keep in mind, however, that some complications which may need special knowledge or handling by an attorney. They are:
One advantage of handling the probate estate work yourself is not having to pay statutory probate attorneys’ fees. Probate attorneys’ fees have been set by law and are based on a percentage of the gross estate. These statutory fees are based on a formula found in California Probate Code §§10810 and 10811. To determine the statutory fees of an estate, use our online probate calculator. A probate attorney may collect:
4% of the first $100,000 of the gross value of the probate estate
3% of the next $100,000
2% of the next $800,000
1% of the next $9,000,000
0.5% of the next $15,000,000 and
a “reasonable amount” as determined by the court for everything above $25,000,000
For example, in a probate estate with a gross value of $150,000, the probate attorney may collect $5,500. If the estate was valued at $400,000, fees would be $13,000. The value of the estate is not reduced by any mortgages or debt which may exist. If you had an estate with real property worth $600,000 with a $500,000 mortgage, the statutory probate attorney’s fees would be $15,000 based on the $600,000 gross value of the estate, not the $100,000 of decedent’s equity.
Probate proceedings can be categorized into two different types: simplified probate procedures and regular probate. If an estate does not qualify to file under one of the simplified procedures, the estate will need to be administered through a full probate. Click here to learn about options for simplified probate proceedings.
The estate representative (executor or administrator) represents the estate in a court proceeding. If there is a will which names an executor, that person is the estate representative. If there is no will (the decedent died intestate), a person can petition the court to be the estate representative who is called an “administrator.” If there is a will, but no executor has been named or the person named is unable to serve, a person can petition the court to be the estate representative who is called an “administrator with will annexed.”
The probate process takes a minimum of 7 to 8 months. Upon the filing of the probate, the court will set a hearing to appoint the estate representative. Probate letters are issued by the probate court giving the representative of the estate the authority to take certain actions on behalf of the estate. During the probate process, notice to creditors and other entities must be provided, and an inventory and appraisal made of the decedent’s assets. When the estate is ready to be closed, a Petition for Final Distribution can be submitted to the court for approval.
In view of the voluminous paperwork required by the court, preparing all the necessary probate documentation can easily be overwhelming for the average lay person. For routine proceedings, this process can easily be facilitated with our full-service document preparation and processing.
Trust Administration (1 real property)
each additional property +$200
Probate Transfer by Affidavit (non-court)
Simplified Probate Proceeding to Transfer Real Property Not Exceeding $50,000
Simplified Probate Proceeding to Transfer Real Property Not Exceeding $150,000
Spousal Property Petition
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*In all small estate probate proceedings, if estate has more than 1 real property or personal representative, fees will based on the following: +$50/each Petitioner over 2; +$50/each additional real property over 1.
**In full probate petitions, the following additional fees will apply, if applicable: +$100/each additional real property over 1; +$100/each co-Petitioner; +$100/each beneficiary over 5. Fee covers all standard documents for routine proceeding but does not cover specialty services that may be required in some proceedings.
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