The estate planning attorneys at Scott C. Soady, A Professional Corporation handle not only estate planning, conservatorships, guardianships, and will and trust litigation, but also many probate matters. We receive a lot of calls from individuals who have a lot of questions about probate. Here are some the frequently asked questions about probate in California and more specifically in San Diego.
1. What is Probate? Probate is the court process in which the estate of a deceased person is inventoried, appraised, and distributed to either the beneficiaries of a will or to the heirs at law of a person who has died without a will or trust (ie. intestate).
2. Why is Probate Necessary? When someone has died, whether there will be a probate depends on whether the decedent had all of his assets in a living trust or joint tenancy. If so, then there is no necessity for probate. If a person has died with a will rather than a trust, there will have to be a probate. If the person had no estate plan, ie. no trust or his assets were not in joint tenancy or in payable on death accounts, his estate will have to go through the probate process to distribute the assets to the decedent’s heirs at law. The probate procedure in the county where the individual died will see that the estate is inventoried and appraised, debts of the decedent are paid, and that the property is distributed to the proper individuals.
3. What Happens During the Probate Process? The first step in a probate is for the Court to appoint a personal representative, either someone who has been named as executor in a will, or in the case of no will, someone who petitions the Court to be the administrator of the estate. Once appointed, the personal representative will identify all the assets, usually post a bond, determine what debts need to be paid from the estate, appraise all the assets, pay any taxes due, sell any property that needs to be sold, and eventually distribute the assets to the beneficiaries or heirs. The personal representative needs to keep accurate records and usually is required to file an accounting with the Court unless an accounting is waived.
4. How Long Does Probate Take? Probate in San Diego can take anywhere from seven to eight or nine months to over a year. Part of the reason is takes so long is that there are time periods which are set by the Probate Code. Once the petition is filed to probate an estate, it can take 4 – 6 months for an administrator or executor to be appointed. Sometimes the hearing on the petition gets continued from the original date set for hearing because of “defects” in the petition which have to be corrected before the Court can rule. Sometimes other individuals besides the Petitioner want to be appointed the administrator or executor and there has to be a court hearing on who will be appointed. Once someone is appointed, notice has to be given to the deceased’s creditors who then have 4 months to file a claim. Other issues can arise which lengthens the time before probate is involved such as the number or type of assets which have to be appraised, whether the property is going to be sold, if an ongoing business is involved, or disputes between the beneficiaries or heirs.
5. How Much Does Probate Cost? The expenses of probate include fees paid to the executor or administrator, fees paid to the probate attorney, and court costs. Fees for acting as an executor or an administrator are set by the California Probate Code and are based on the gross value of the estate. Currently the fees are 4% of the first $100,000; 3% of the next $100,000; 2% of the next $800,000 and ½ % of the next $15 million. The personal representative (administrator if there is no will and executor if there is a will) are entitled to the same fees as the attorney. Court costs include filing fees, publication costs, bond cost, fee for probate referee, and recording costs.
6. How Can I Avoid Probate for My Beneficiaries or Heirs? The simplest way to avoid the probate process is to create a revocable living trust. Read more about the importance of trusts and how they avoid probate on our website. Other ways to avoid probate are to have all of your assets in joint tenancy or in assets that have designated beneficiaries upon your death.
We assist clients everyday to create an estate plan to avoid probate. We also can handle your probate matter if a loved one has died and you are the executor of their will or want to be appointed an administrator of an estate. Call us with any questions and to schedule a complimentary consultation.