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:
- Ambiguities in a will
- Contested claims against the estate
- Estates that have more debts than assets
- Estates that have unresolved claims
One advantage of handling the probate estate work yourself is not having to pay statutory probate attorneys’ fees. If you need to file a full probate, it is important to educate yourself about California’s statutory fee schedule. For large estates over $166,250 in value, 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 $166,250, 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.
Filing full probate for large estate in California takes on average 8-12 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. Most probate cases are very procedural and routine and do not require an attorney. As a result, California probate can easily be completed with our full-service document preparation and processing.
In addition to our document preparation services, A People’s Choice offers case management throughout the entire process. This added-value service keeps your probate case on track so we can complete it quickly and without unnecessary delays. In addition, our cloud portal system gives our customers instant and easy access to their probate documents and other important materials.
Not every California estate requires completing a 9-12 month full probate in California. California offers several small estate alternatives for estates with a total value under $166,250. For example, small estates under $166,250 that consist of only personal property (no house or land) can usually be settled without filing a court proceeding. A People’s Choice can help you prepare some paperwork to present to the bank or other agency holding the assets so the funds or assets can be easily turned over to the beneficiaries.
For small estates with real property (land or house) and total value under $166,250, there are two different options. Estate under $55,425 in value can be settled through a court process that doesn’t require a hearing. Families can settle estates over $55,425 but under $166,250within a few months through a court process with one single hearing. A personal representative isn’t in these simplified proceedings. Instead, all beneficiaries petition together and jointly file the case.
There is also a particular proceeding for a spouse of a decedent. The spouse of a decedent can file a spousal proceeding no matter what the size of the estate. A spousal proceeding can quickly settle and distribute spousal interest in community and separate property without having to file full probate.
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