What Is Probate?
Probate is the legal process of appointing a person to administer an estate, determine whether a valid Will exists, marshall the assets of the decedent, notify and pay creditors, and distribute the remaining assets, if any, to either the beneficiaries designated in the decedent’s Will or to the legal heirs of the estate as determined the state intestacy laws of the decedent’s state of residence at the time of death.
As part of the initial petition process, a series of publications notifying the public of the death of the decedent and that a probate of the decedent’s estate is being initiated is published in a Riverside, San Bernardino, San Diego, Orange, or Los Angeles County legal newspaper, as applicable, that is designated for such publication.
If a Will exists, the Will is docketed with the court, a petition for probate of the estate is filed with the court, and the court is requested to approve the appointment of the executor designated under the Will.
If no Will exists, a petition for administration of the estate is filed with the court. The petition nominates an administrator of the estate, usually a relative of the decedent, for approval by the court.
Once approved by the Riverside, San Bernardino, San Diego, Orange, or Los Angeles County Probate Court, the executor or administrator is given Letters Testamentary or Letters of Administration (“Letters”) as proof of the ability of the executor/administrator to manage the probate process. The executor/administrator marshals the assets in the name of the decedent and files an Inventory and Appraisement with the Probate Court.
Creditors are given four months from the issuance of Letters to file their claims. After a creditor claim is received, the executor/administrator must either approve it, deny it, or attempt to negotiate a reduced payoff in full satisfaction of the claim. If the claim is denied, the creditor has ninety days to sue to enforce the claim. After the time to file a creditor claim expires and the other requirements of a probate administration are fulfilled, the executor/administrator can file his or her Final Report with the court, request court approval of the actions taken, and distribute the remainder of the estate as ordered by the court.
Doesn’t Having a Will Avoid Probate?
Unfortunately, no. By using a Will as the central planning document of an estate plan, the person is virtually assuring his or her estate will need to be probated after death.
How Long Does a Probate Take?
Because of time delays between the time of filing documents with the court and the hearing related to the subject matter of those documents (usually 60 to 90 days in the Riverside and San Bernardino County Probate Courts – much longer in the Probate Courts of Orange and Los Angeles Counties), as well as the mandatory four-month creditor claim period, a probate administration handled by Riverside probate attorney Dennis Sandoval will take a minimum of eight months to one year to go from initial filing to approval of the Final Report and distribution of assets to beneficiaries. A typical probate handled by other attorneys or persons representing himself or herself (pro per) takes longer, usually between eighteen months and two years.
Fun Fact: The longest probate in U.S. history, the probate of Marilyn Monroe’s estate, took over eighteen years to go from start to finish.
How Much Does It Cost to Probate a Southern California Estate?
Probates are expensive. The regular fees paid to the executor and the attorney for the executor, which are commonly referred to as statutory fees, are prescribed by California law. In addition to statutory fees, the executor and attorney for the executor may be entitled to extraordinary fees for services rendered beyond what is normally required in a probate administration (such as the sale of a business or real property or the preparation of an estate tax return). In addition to these fees, there are filing fees, publication fees, probate referee (court appointed appraiser) fees, and certification costs. The statutory fees are based on the value of the gross estate. An example of the typical fees and costs for an estate consisting of a residence valued at $300,000 and $200,000 of various bank accounts and investments (for a total value of $500,000) follows:
|Types of Fees and Costs
|Statutory Executive Fees
|Statutory Attorney Fees
|Probate Referee Fees
|Certification and Miscellaneous Fees
|Typical Total Costs
California statutory attorney and executor fees are calculated based on the gross value, not the net estate. Therefore, the statutory attorney fees to probate a $500,000 estate with no debt are the same as the statutory probate fees to probate a $500,000 estate with $400,000 of debt, even though there is only $100,000 of net estate available for potential distribution in the latter example.
The statutory attorney and executor fees are calculated as follows: 4% of the first $100,000 of gross value, 3% of the second $100,000 of gross value, 2% of the next $800,000 of value, 1% of the next $9 million of value, 0.5% of the next $15 million in value, and anything over $25 million is negotiable. For example, the fee for a $250,000 would be calculated as follows: (1) the fee for the first $100,000 is $4,000 (4% of $100,000); (2) the fee for the second $100,000 is $3,000; and (3) the fee for the next $50,000 is $1,000 (2% of $50,000) – for a total fee of $8,000. This fee must be approved by the San Bernardino, San Diego, Orange, or Los Angeles County Probate Court, and it is the maximum fee that can be charged. It is possible for the executor to completely waive his or her fee (many do) and for the attorney to agree in advance to reduce his or her statutory compensation.
Issues of Privacy
Persons attending our seminars and webinars often ask questions like “How it is that the details of Michael Jackson’s Will and his net worth became public knowledge?” The reason is that the probate process is a public process. The records of the court are available to both creditors and the general public. Anyone can go to the Probate Court for the county where the decedent resided at the time of his or her death and learn details about the assets and debts of the decedent, as well as the intended beneficiaries of those assets after the probate administration is complete.
Privacy is the third most frequent reason, after cost and time delay, stated by the attendees at our seminars and webinars for avoiding probate. The most frequent method used to assure privacy is through the use of trusts, as the terms of a trust are not required to be made public after the death of the individual.
Methods to Avoid Probate
There are many planning vehicles that can be used to avoid a probate administration. There are advantages and disadvantages to each of these strategies. You can learn more about all of these strategies by attending one of our free estate planning seminars or by scheduling a free consultation with one of our law firm’s estate planning attorneys. Several popular alternatives include:
- Joint TenancyCustodial Accounts
- Payable on Death / Transfer on Death / In Trust For Accounts
- Beneficiary Designation
- Revocable Living Trusts
- Various types of Irrevocable Trusts
How Our Probate Attorneys Can Help
Incorporating probate avoidance strategies into your overall estate plan is one of the greatest gifts you can leave your loved ones. Along with keeping the details of your estate private and increasing the net value of the estate you pass down to your loved ones, creating an estate plan that avoids probate also spares them the additional stress and grief that typically accompanies a long, drawn-out probate process.
Visit One of Our Southern California Locations
With office locations throughout Southern California, Sandoval Legacy Group, a Division of Holstrom, Block & Parke, offers representation for Estate Planning, Special Needs Planning, Trust Administration, Probate, and Conservatorships in Riverside, San Bernardino, Orange, San Diego, and Los Angeles County.
To learn more about how your estate can avoid probate, contact Southern California probate attorney Dennis M. Sandoval at 951-888-1460 to schedule an initial consultation or contact us online.