Frequently Asked Questions About Probate

1. How long does a California probate proceeding take?

A “short” or “summary” probate proceeding can take as little as approximately 30 days. However, not every estate qualifies for the “short” or “summary” probate proceeding. A “full” formal probate proceeding can be completed in as little as approximately 6 months from the date that the probate petition is filed with the court to the date of distribution. But the time can run longer depending upon the creditor’s claims filed against the estate, litigation, disputes among the beneficiaries, etc. Most probates usually take six months to a year. The so-called “delay” of probate is usually not a significant problem. In most cases, family members have prompt access to joint bank accounts or life insurance proceeds. If special needs exist, the probate court may allow for preliminary distributions or a family allowance.

2. How much are the attorney’s fees?

Most attorneys charge the “statutory fee” for handling a probate. The statutory fee is set forth in California Probate Code sections 10800-10850. The statutory fee represents the maximum fee for ordinary probate legal services that may be charged by an attorney. In addition to the statutory fee, attorneys are entitled to obtain additional fees for “extraordinary services” such as handling the sale of real property during the course of the probate proceeding, or assisting in the preparation of tax returns for the estate.

3. What are the other costs that are involved in a California probate proceeding?

The term “costs” does not include attorney’s fees, but includes the initial filing fee, the publication fee for the publication of the notice of petition to administer estate and the probate referee’s fees. If the case involves litigation, there may be other costs for such things as deposition reporters, subpoenas, expert witnesses, etc.

4. Can property be transferred without probate in California?

In some instances, property can be transferred without a formal probate proceeding. Whether or not a decedent’s property can be transferred without a formal probate depends on the type of assets the decedent owned at the time of death and/or the nature and size of the decedent’s estate. Certain assets, for instance, may not be subject to probate. Life insurance, for example, usually passes directly to the named beneficiary without court confirmation. Property held in joint tenancy may also pass directly to the surviving joint tenant.

In other cases, some or all of the decedent’s assets may qualify for a “summary probate” or “set-aside proceedings.” These proceedings are less complicated alternatives to a formal probate. For example, if all of the decedent’s property goes to the surviving spouse, a summary probate proceeding can be used where a “spousal property petition” is filed with the court seeking court confirmation that the surviving spouse owns the property. This proceeding can take as little as 30 days. In other cases, if the total value of the decedent’s property otherwise subject to probate is less than $100,000, an affidavit procedure may be used to transfer personal property, and the transfer of real property can be confirmed through a relatively simple proceeding.

However, even if property can be transferred without probate, it may be beneficial to have a formal probate depending upon the nature and the size of the estate, the creditor’s claims against the estate and the original tax basis of the assets that the decedent owned at the time of death. With respect to any decedent’s estate, you should consult with an attorney and have an attorney analyze the entire estate to see if a formal probate proceeding will be beneficial to the heirs prior to taking any steps to transfer the decedent’s property without probate.

5. Who will be appointed the administrator or executor of the estate?

If the decedent left a will and named an executor in his or her will that person will most likely be appointed as the executor of the decedent’s estate unless the named executor refuses to act or is unfit to serve as executor. If the decedent died without leaving a will, the court will appoint a person to act as the administrator of the decedent’s estate. California law provides a list of relatives designating who has priority to act as the administrator of the decedent’s estate. The court will appoint one of these relatives in the order of their priority to act as the administrator of the decedent’s estate provided the person is qualified and there are no objections to his or her appointment. The parties can also request that more than one individual act as administrators of the decedent’s estate.

6. What happens if there is no Will?

If a person who resides in California dies without leaving a will, his or her property will be distributed to those individuals who constitute the decedent’s heirs under California’s laws of intestate succession. The laws of intestate succession determine how the estate will be divided based on a person’s relationship to the decedent, e.g., surviving spouse, children, other descendants, etc. Determining how the decedent’s property will be distributed also depends on how title to the decedent’s property was held as of the date of death, whether or not the decedent’s property constituted separate property, community property, joint tenancy property or property belonging to a domestic partnership. Probate of an intestate estate will still be required unless specific property of the estate is not subject to probate such as life insurance, etc. In cases of intestacy, the court will appoint an administrator to handle the probate proceeding – generally, the decedent’s closest relative. If you believe you have a claim to a decedent’s property, you should consult with an attorney immediately after the decedent’s death so that you can protect your rights to the property.

7. What happens if there is a “Living Trust”?

If the decedent left his or her assets in a trust, both the trustee and the beneficiaries of the trust should seek competent legal advice immediately after the death of the decedent.

Although a trust may not have to go through “probate,” the trustee should nevertheless obtain legal advice in order to administer the trust in compliance with the trust document and California law. Being a trustee is a serious responsibility. Each trust document is different, and the trustee is required to administer the trust in accordance with its terms. If you have been named as a trustee you should seek the advice of an attorney after the death of the decedent to review the terms of the trust and your responsibilities as trustee. If the trustee does not comply with the various legal rules and terms of the trust, the trustee may be held personally liable to the beneficiaries. If you have been named trustee, you will also be required to perform a number of tasks that require legal and tax advice. Among other things, these tasks include: providing legal notice to the decedent’s creditors, giving legal notice to the beneficiaries of the trust, filing tax returns on behalf of the trust, providing detailed accountings of the trust assets, receipts and disbursements, making distributions to the trust beneficiaries in accordance with the terms of the trust, and investing trust assets in accordance with California law and the terms of the trust.

If you are the beneficiary of a trust, it is also advisable to seek legal advice following the death of the decedent. An attorney can advise you as to whether or not the trustee is managing the trust assets properly, can insure that proper and timely accountings are provided, and that distributions are made properly. Legal advice may be needed if there is any mismanagement of the trust assets by the trustee, and, in some cases, the beneficiary may need to take legal action against the trustee.

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