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 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.

I have a small estate. Does it have to be probated?

In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated. There are exceptions made if the decedent is survived by a spouse.

What is a probate asset?

Assets held only in the name of the decedent are generally probate assets. An asset is not counted as a probate asset if it is owned in joint tenancy (but not if it is owned in tenancy in common) or if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be added to the estate and probated. If there is a surviving spouse, a formal probate can usually be avoided with a spousal property petition.

What is an executor?

The executor, also called an administrator or personal representative, is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent’s closest relatives have the highest priority to become administrator of the estate. Depending on the circumstances, this person may be called the executor, administrator, personal representative, or administrator with will annexed.

How does a probate get started?

Probate begins with the filing of a petition for probate at the Superior Court in the county where the decedent lived. The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether bond will be required.

Who decides whether the petition will be approved?

The decision is made by the judge who hears the case, but the preliminary work is done by a court staff member who is called the probate examiner. The probate examiner reviews the file, makes sure that state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner disagrees with the recommendation, a hearing will be held to give the petitioner a chance to present his or her case.

What are the executor’s duties?

Administration of the estate includes managing the assets to prevent losses, paying bills for the estate, filing tax returns, preparing an inventory of the assets, locating heirs, and dozens of other duties. The goal is to wrap up all of the loose ends of the decedent’s financial affairs and distribute the estate to the beneficiaries without further legal problems.

How long does an average probate take?

If the probate has no unusual problems, it can be concluded in about eight months. That period includes a four-month creditor’s claims period, and the time it takes after a petition is filed before it is actually heard. Due to crowded court calendars, hearings are often held six weeks or more after the petition is filed. There may be other problems with creditors, taxes, or will contests that will delay the probate for longer periods.

How can someone see the will of a person who has died?

If the estate is in probate, you can go to the Superior Court in the county in which the decedent lived, and ask to see the file. The file will include the will and all other documents that have been filed in the case.

Who will receive a notice that the probate is being started?

State law requires that notices be sent to all of the heirs of the decedent, beneficiaries who are mentioned in the will, and proposed executors. The notice will state the date and time of the hearing and the courthouse where the case will be heard.

I went to one of those hearings and I didn’t hear any testimony. What was happening?

In most counties, if the case has been approved by the probate examiner’s office, and no one has indicated that they intend to contest that decision, the hearing is minimal: The judge calls the names of the cases on the “approved list.” If no one stands up to object when the case is called, the order will be signed without having to hear testimony. If you want to raise an objection to any petition, be sure to call the probate examiner’s office, or the attorney for the opposing side, to make your objection known before the hearing.