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Probate

Probate is the process by which the court gathers a decedent's assets; pays taxes and claims, and distributes assets to the named beneficiaries. Generally Probate is only necessary when a person dies with assets in his or her own name alone. Assets in a Living Trust, jointly held or with a beneficiary do not have to go through Probate.

Probate has a bad reputation and rightfully so! It is expensive. Legal fees are approximately 3% of the probate assets and the personal representative (executor) can also take a fee up to 3%. If there is real estate in more than one state, there can be multiple probates. Additionally, Probate takes at least six months and sometimes more and delays the distribution of the assets to the beneficiary.

Probates occur because of one or more of the following:

  • "Let the kids worry about it--I'll be dead."
  • Poor planning and lack of information.
  • Procrastination
  • Not wanting to deal with unpleasant subjects.
  • Waiting to let the surviving spouse "take care of things" (and he/she can't or doesn't).
  • Fear and misinformation about Living Trusts.
  • Living Trusts that have not been “funded”. Funding is the process of making sure assets are titled in the Trust
  • Poor legal advice on how to avoid Probate.

The Probate process starts with filing the Original Will with the appropriate Court, or if there is no Will filing a request that the Court determine who the heirs are so the property can pass by intestate succession.  The Court will determine the validity of any Will. Whether or not there is a Will, the Court will appoint a person to Administer the estate, that person is known as an executor, administrator or personal representative.

The personal representative must collect the assets subject to probate, pay debts and death taxes, and request Court authorization to distribute assets to the person named in the will or to the decedent’s heirs.

In California the personal representative and attorney are each entitled to minimum fees as set forth by the California Probate Code according to the following schedule;

4% of the First $100,000.00

$4,000.00

3% of the Next $100,000.00

$3,000.00

2% of the Next $800,000.00

$16,000.00

1%% of the Next 9,000,000.00

9,000.00

1/2% of the Next 15,000.00

$7,500.00

Attorneys may also charge extraordinary

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Fees based on their hourly rate

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This fee is calculated on the "estate accounted for" or generally the gross estate.

The Sale of Real Property is supervised by the Court who will set a minimum price, and the property may be sold at Public Auction in court.

The Probate process usually takes nine months to two years; however, the size and complexity of the probate estate determines the actual duration of the probate. Upon final distribution and transfer of all probate assets to the appropriate persons, the court discharges the personal representative.