I have a small estate. Does it have to be probated?
In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated. There are exceptions made if the decedent is survived by a spouse.
What is a probate asset?
Assets held only in the name of the decedent are generally probate assets. An asset is not counted as a probate asset if it is owned in joint tenancy or if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be added to the estate and probated. If there is a surviving spouse, a formal probate can usually be avoided with a spousal property petition.
What is an executor?
The executor, also called an administrator or personal representative, is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent's closest relatives have the highest priority to become administrator of the estate. Depending on the circumstances, this person may be called the executor, administrator, personal representative, or administrator with will annexed.
How does a probate case get started?
Probate begins with the filing of a petition for probate at the Superior Court in the county where the decedent lived. The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether bond will be required.
Who decides whether the petition will be approved?
The decision is made by the judge who hears the case, but the preliminary work is done in most counties by a court staff member who is called the probate examiner. The probate examiner reviews the file, makes sure that state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner disagrees with the recommendation, a hearing will be held to give the petitioner a chance to present his or her case.
What are the executor's duties?
Administration of the estate includes managing the assets to prevent losses, paying bills for the estate, filing tax returns, preparing an inventory of the assets, locating heirs, and dozens of other duties. The goal is to wrap up all of the loose ends of the decedent's financial affairs and distribute the estate to the beneficiaries withut further legal problems.
How long does an average probate take?
If the probate has no unusual problems, it can be concluded in eight to twelve months. That includes a four-month creditor's claims period, and the time it takes after a petition is filed before it is actually heard. Due to crowded court calendars, hearings are often held several weeks after the petition is filed. There may be other problems with creditors, taxes, or will contests that will delay the probate for longer periods.
How can someone see the will of a person who has died?
If the estate is in probate, you can go to the Superior Court in the county in which the decedent lived, and ask to see the file. The file will include the will and all other documents that have been filed in the case.
Who will receive a notice that the probate is being started?
State law requires that notices be sent to all of the heirs of the decedent, beneficiaries who are mentioned in the will, and proposed executors. The notice will state the date and time of the hearing and the courthouse where the case will be heard.
I went to one of those hearings and I didn't hear any testimony. What was happening?
In most counties, if the case has been approved by the probate examiner's office, and no one has indicated that they intend to contest that decision, the hearing is minimal: The judge calls the names of the cases on the "approved list." If no one stands up to object when the case is called, the order will be signed without having to hear testimony. If you want to raise an objection to any petition, be sure to call the probate examiner's office, or the attorney for the opposing side, to make your objection known before the hearing.
How much does probate cost?
Fees for attorneys and executors are determined by the California Probate Code and are based on a percentage of the estate's value. Examples are as follows:
Estate Value (Statutory Fee)
$1 million ($23,000)
$1.5 million ($28,000)
$2 million ($33,000)
$3 million ($43,000)
$4 million ($53,000)
$5 million ($63,000)
$6 million ($73,000)
$7 million ($83,000)
$8 million ($93,000)
$9 million ($103,000)
$10 million ($113,000)
$15 million ($138,000)
$20 million ($163,000)
Contact the Law Office of Joseph M. Barton at 415-235-9162 for a complimentary consultation regarding your probate or trust administration matter. Serving clients throughout California.