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PROBATE

WHAT IS PROBATE?

Short answer: A lot of paperwork over the course of an average 12-18 months (depending on the complexity of the case).  Probate is the process in which a decedent's estate is administered through the court system to verify who are the heirs and their entitlement to any assets.  Probate will likely be necessary if the individual passed away without a trust and had assets that have a total value of $184,500.00 or more.

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). 

Judge and Gavel

PROBATE AVOIDING ASSETS

  • Trust Assets

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

  • Real Estate held in 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.

A reasonable amount is determined by the court for amounts above $25,000,000.

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.

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 $184,200 or 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.

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