Experienced probate attorney facilitating the efficient administration and transfer of assets from one generation to the next.
Probate is a legal process controlled and supervised by the Superior Court in the County in which a person resided when they died. A Probate case is initiated when an individual, typically a family member, petitions the court to be appointed as the executor (when there is a will) or the administrator (when there is no will). After appointment by the court, the executor or administrator holds the responsibility of gathering assets, notifying all potential beneficiaries and creditors, selling property if necessary, distributing assets, and providing a full accounting to the court. Any disputes regarding the validity of a will, the validity of a claim or debt against the estate, or between beneficiaries may be heard by and determined by the court.
Interested parties to a Probate case, such as executor/administrator, creditors, and beneficiaries, can expect the typical case to take approximately 9 months or longer for completion. Property is not distributed until the completion of Probate.
Disputes for any reason regarding the estate prolong the process and increase the costs of administering the estate. In some cases disputes among beneficiaries significantly reduce the amount those beneficiaries will inherit.
Attorney’s fees are typically paid at the end of a Probate case after court approval. The California Legislature has set forth statutory probate fees for an executor/administrator and attorney that are a percentage of the gross value of the estate. This gross value is determined by adding the overall appraised market value of the assets passing through probate irrespective of the debts, liens, mortgages, or loans attached to the property.
Formal Probate May Not Be Required for Small Estates
An estate with a total asset value of $150,000 or less can avoid the full probate process by using other procedures that are easier and more efficient to transfer assets. In these circumstances, an affidavit or declaration can be used to transfer property, other than real estate. An abbreviated petition with the court can transfer an estate when there is real estate and personal property with a combined value of $150.00.
Probate Can Be Avoided With Proper Planning
Probate is one way to transfer assets to heirs and beneficiaries. There are many cases where assets transfer to your beneficiary outside of probate. A living trust is one of the main tools in estate planning to avoid probate. Many people are familiar with beneficiary designations in financial accounts, particularly retirement accounts. When a financial account has a beneficiary designation or a transfer on death designation, those assets will transfer outside of probate according to the terms of the documents in place with the financial institution. Additionally, property held in joint tenancy or community property with right of survivorship transfers automatically to the other joint owners, so long as there are still joint owners. Proper planning is required to take advantage of the many options available to avoid probate.