PROBATE

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WHAT IS PROBATE?

Losing a loved one is a difficult time for those left behind.  Those left behind will often need to probate the decedent's estate to determine who inherits and then transfer the property accordingly. Probate is the process in which a decedent's estate is administered through the court.  It does not matter whether the decent was married, had a will, or had no will at all, 

probate depends on the gross value of the assets. 

WHAT IS THE PURPOSE OF PROBATE?

The purpose of probate is to determine:

  • If a will exists and if it is valid;

  • Who are the decedent's heirs and/or beneficiaries;

  • The value of the decedent's property;

  • The decedent's financial responsibilities and

  • How to transfer the decedent's property.

WHAT IS AN EXECUTOR OR ADMINISTRATOR?

The person appointed by the court as the personal representative to gather the assets, pay debts and expenses, and then distribute the rest of the estate to the beneficiaries is called either the executor (if there is a will) or an administrator (if there is no will). 

Stack of Files

WHAT IF THE ESTATE WAS HELD IN A TRUST?

As long at there was no property totaling in value over $160k left outside of the trust, then probate will be avoided.  Click to see information on Trust Administration.

WHAT IS A SPOUSAL PROPERTY PETITION?

A Spousal Property Petition can be filed by a surviving spouse or registered domestic partner when the question is about title or ownership of property.  There are three times this type of petition is appropriate when the surviving spouse can show entitlement to the asset because:

  • The asset was titled in "community property" (not specifying "with right of survivorship");

or

  • There is a will leaving all assets to the surviving spouse;

or

  • There was no will, but the deceased spouse's name is on the title, and the surviving spouse will receive the asset through intestate succession.

This is a simplified probate petition which requires only one hearing.​  The cost is a minimal flat fee.

WHAT IS A SMALL ESTATE AFFIDAVIT?

In the state of California, a small estate is anything estate including real and personal property totaling $166,250 it less.  It is used to collect the real property and personal property of the decedent, however, this affidavit cannot be filed until forty (40) days after the decedent's death.  The cost is a minimal flat fee.

HOW LONG IS THE TYPICAL PROBATE PROCESS?

The short answer is the length of the probate depends on the complexity of the estate and any beneficiary disputes.  On average, it takes between one to two years.

However, if a Spousal Property Petition is all that is required, it can only require one hearing.

The Law Office of Brianna J. Giliberto-Hermann is available to assist clients in

Probate Matters.

Free 30-Minute Case Assessment

Judge and Gavel

PROBATE AVOIDING ASSETS

  • Trust Assets

  • Accounts (bank, IRA, stock, etc.) with beneficiaries, joint tenancy, or right of survivorship

  • Life Insurance Proceeds

  • Transfer on Death (TOD) or Payable on Death (POD) accounts

PROBATE FEES

Probate fees are based on the gross value of the decedent's estate as described in California Probate Code section 10810 which states:

4% of the first $100,000;

3% of the next $100,000;

2% of the next $800,000;

1% of the next $9,000,000; and

0.5% of the next $15,000,000.

The client will be responsible for costs such as court costs, court fees, and publication fees where applicable.  An initial retainer to cover these fees will be required.