Probate

If the estate contains probate assets, you will likely need a court supervised Probate proceeding unless your estate is less than $184,500.

If you have been named Executor of a Will and want to serve as Executor, you must first deposit the Will and a Petition for Probate with the Court. After a properly noticed hearing and if the Petition for Probate is approved, the Court will issue an Order and Letters. These documents will provide the Executor with the legal authority to carry out the probate administration. 

After the Petition for Probate has been granted, the Executor must locate known creditors and file an inventory and appraisal. Once the Notice to Creditors period has passed, a Report and Accounting to the Court must be filed. An appraisal from a Probate Referee will likely be required unless all assets are cash assets. The Report and Accounting will require a second noticed hearing. When an Order is obtained after this hearing, the Executor can make distributions. Many Executors retain a reserve for potential tax or administration liabilities and distribute the balance after establishing there are no more debts of the estate.

Generally, an Executor of a Will has the duties of noticing interested parties, marshaling (gathering & managing) the assets of the Estate, paying any outstanding debts to Creditors (including taxes owed to the government) and distributing the Estate to the Beneficiaries after an accounting is approved by the Court. These are time consuming and detail-oriented tasks. Excellent records must be maintained by the Executor.

An Executor of a Will is not required to hire a Probate Lawyer. However, a more appropriate question may be, “Should an Executor hire a Probate attorney?” Only the Executor can answer that question, but the Executor should realize they will be the party named in litigation by Creditors and Beneficiaries if the Probate is not administered correctly. Further, an Attorney’s compensation is statutorily set by the Probate Code to be paid from the Estate. This means the Executor does not have to personally pay for the Attorney and the Attorney’s compensation will come from the Estate when it is finally settled.

When there is no Will, the estate is considered Intestate and still must pass through Probate. Rather than an Executor, there will be an Administrator. The Probate Code sets out how the estate will be administered, specifically who can serve as Administrator and who the beneficiaries will be. The Administrator's duties are very similar to an Executor's with a few small exceptions because there is no Will.

Probate is the Judicial process or procedure by which a decedent’s Estate is administered. The Probate Court’s job is to supervise, establish that your Will is valid (if you have a Will), make sure your assets are properly accounted for, that creditors are paid (if there are outstanding debts) and that the balance of your Estate reaches your Beneficiaries. The Probate process is governed by the California Probate Code.

An Estate must pass through Probate to transfer title of the decedent's Assets to their Beneficiaries. The key is transferring title.  For example, a bank with a decedent's bank account valued at $100,000 could have 7 different individuals claim title to the account belonged to them and should be transferred to their name. With Probate, the Probate Court provides a final and reliable court order of who title is to be transferred to.

Probate is required when a person dies Intestate (without a Will) and even when they die Testate (with a Will) in most cases. There are some exceptions if the value of the estate is low. However in most cases, even if you have a Will, your Estate will need to pass through Probate to officially transfer title of your assets.

In addition to not wanting a detailed Will becoming a public record, the primary reasons people want to avoid Probate is the length of time a Court supervised administration takes and the higher costs associated with the Probate process.

Yes. There are filing fees with the Probate Court, bonding costs, publication costs, likely Probate Referee inventory and appraisal costs and Probate Code § 10811 also permits the Probate Court to grant additional Fees for Extraordinary Services.

Yes. There is judicial supervision of your Estate’s administration from the Probate Court.

Yes. Avoiding Probate will likely save money, time and keep your personal affairs out of the public record. You gain more control of the process and reduce Estate Administration Fees.

There are several Probate Alternatives. If the estate is low value, there are methods to collect the assets without a formal probate. However, these methods require such a low financial threshold they should not be relied on when planning. The proactive approach is to explore creating a Trust that can assist you accomplish your estate planning goals while avoiding Probate.