|Q. How does the probate process begin?
A. Probate begins when a petition for probate is filed with the Superior Court in the county where the decedent resided or owned real property. Typically, the lawyer for the individual who wants to be the executor or administration prepares the petition. The petition for probate provides details about the decedent, the executor, and information about the beneficiaries. It also includes information about the estate and whether a bond is necessary as insurance for the assets.Q. What happens to my estate if I do not have a will or trust?
A. If you do not have a will or a living trust at the time of your death, then the law dictates who will inherit from you and who will act as the executor of the estate. This is referred to as “intestate” distribution. The law sets forth an order of priority for who can act as an executor and who will inherit. Spouses are first, followed by your children. If there is no spouse, then your children receive your entire estate. Without a spouse or children, then the law will seek the next closet relative to receive your estate. This might be your parents or siblings. If you want to control how your estate will pass on, then you must have a plan and binding legal documents to ensure your wishes.
Q. How big does your estate have to be to require probate?
A. Estates that have a gross value of over $100,000 of personal property (cash, stocks, and tangible personal items) normally require probate. However, any estate that includes real property worth more than $30,000 requires probate. These values do not take into account and debts that are owed on the property. There are some ways to avoid probate, including beneficiary designations, jointly held assets, and community property.
Q. What is a probate asset?
A. Assets held in the name of the decedent only are typically probate assets. Assets that were held in joint tenancy where at least one joint tenant is still alive are not considered probate assets. Other non-probate assets include beneficiary-designated assets, such as life insurance, annuities, 401ks, and IRAs. As long as the beneficiary is still alive, the asset avoids probate. For a surviving spouse, formal probate can be avoided with a “spousal property petition” if the spouses held title as community property.
Q. Does a will avoid probate?
A. No. In fact, having a will guarantees there will be a probate. A will must be probated.
Q. How does jointly owned property fit into probate?
A. Jointly owned property is also referred to as joint tenancy. Joint tenancy includes a “right of survivorship”, which means when one of the owners dies, the remaining owner automatically becomes the sole owner of the property. Probate is not required in this case. If by chance the death of both owners occur simultaneously, then probate is required.
Q. How long does probate take?
A. The length of probate depends on the complexity of the estate, but it usually takes a minimum of eight months and can take up to two years. While in probate, the estate assets are subject to court supervision. If any family members require money to live on in the meantime, they must request it from the executor and get court approval. This takes time and the court can deny the request.
Q. How much does probate cost?
A. In California, the attorney and executor fees are set by law. There are also additional court costs and filing fees, document certification and recording fees, and property appraisal fees.
Estate Value Attorney Fee Executor Fee
$100,000 $4,000 $4,000
$200,000 $7,000 $7,000
$300,000 $9,000 $9,000
$400,000 $11,000 $11,000
$500,000 $13,000 $13,000
$600,000 $15,000 $15,000
$700,000 $17,000 $17,000
$800,000 $19,000 $19,000
$900,000 $21,000 $21,000
$1,000,000 $23,000 $23,000
$2,000,000 $33,000 $33,000
Q. Is probate open to the public?
A. Yes, anyone can go to the courthouse and review your will and the entire court file. Within this court file is the inventory and accounting of the estate that was filed as part of the probate proceedings. This means they are available for public view. There is an itemized list of assets, liabilities, income and expenses of the estate. Therefore, the entire financial condition of the estate is open and accessible to review by anyone who desires to look. In addition, the names and addresses of the estate beneficiaries are in the file, making them possible targets for those unscrupulous individuals who may try to take advantage of them. In comparison, a trust settlement is a private matter and no personal information is available to the public.
Q. What is estate planning?
A. Estate planning is the creation of a strategy for the management and distribution of your assets upon incapacity or death, and implementing it to protect your loved one’s future. During the planning stage, you will inventory your assets, decide who shall receive them, and evaluate the financial and tax consequences of those actions. An estate planning attorney will then assist you in implementing your plan, including drafting all the necessary documents and helping you to transfer all of your assets into a trust. A complete plan will also include powers of attorney, medical directives, a will, and any corporate transfer documents.