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Probate is easy to avoid if you pay attention to what you
own and how you own it. But not taking the time to avoid probate can
result in a costly, time-consuming, and frustrating experience for your
family. This webpage provides details about probate in California.
WHAT IS PROBATE? Probate is a legal proceeding that is used to wind
up a person's legal and financial affairs after death. In California
probate proceedings are conducted in the Superior Court for the
county in which the decedent lived, and can take at least eight
months and sometimes as long as several years.
WHAT HAPPENS DURING A 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.
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? California Probate
Code section 10810 sets the maximum statutory fees that attorneys
can charge for a probate. Higher fees can be ordered by a court
for more complicated cases. The fees are four percent of the first
$100,000 of the estate, three percent of the next $100,000, two
percent of the next $800,000, one percent of the next $9,000,000,
and one-half percent of the next $15,000,000. For estates larger
than $25,000,000, the court will determine the fee for the amount
that is greater than $25,000,000.
The fees listed below
are the California statutory fees used to compensate attorneys and executors
in probate cases for various sizes of estates. If both the attorney
and the executor receive a fee, the amount paid will be double
that shown below. The value of the estate is determined, in general, by
the inventory for the estate. (If an accounting of the estate has been
waived, the total value of the estate for attorney's fees purposes is the
inventory, plus gains on sales, minus losses on sales.) Debts are not
included in determining attorney's fees, and if a house is appraised at
$1,000,000, for example, and it has a mortgage of $800,000, it is still
considered a $1,000,000 asset for the purpose of calculating attorney's fees.
The fee charged to file a probate
petition is $435, but may be slightly higher in some counties due to
surcharges. There will be an additional $435 fee when the
petition for final distribution is filed. There are other fees for
publication of the probate notice, for the probate referee, and for
certification of copies of court documents.
OF THE ESTATE: Estates
are appraised by probate referees, who are appointed by the State Controller
to determine the fair market
value of the asset. The fair market value includes mortgages
and other debts, which can result in an appraisal of the property
that is higher than the equity that the deceased owned in the
property. Probate referees receive a fee based on .1 percent of the assets
that have been appraised.
CAN GO HIGHER: In probates
that are complicated by lawsuits or tax problems, the attorney
and executor can ask the judge to approve fees that are higher
than those set by state law.
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. 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
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.
Many estates do not need to be probated. For information
about avoiding probate, click here: Avoid
Probate If there is a surviving spouse and there is no will, or the
will gives the estate to the surviving spouse, a
spousal property petition might be used.
For estates valued at less than $150,000, the small estate law may be