Probate is the court supervised legal process which an estate must go through in order for your assets to be distributed to your heirs or beneficiaries. It is important to understand that if your estate plan is a will, your assets will go through probate. The court validates the will and oversees the administration of your estate. If you die with no estate plan, i.e. you have no trust and no will, your estate will also go through probate. In either case, the Court will appoint someone to handle the decedent’s assets. That person is called an executor, administrator, or administrator with the will annexed, depending on the circumstances.
During the probate period, . creditors have an opportunity to make a claim against the decedent’s estate. The assets are collected, appraised, and taxes and debts paid. When that has been done, the executor or administrator will distribute the probate assets to your beneficiaries or heirs. If you have a will, your assets will go to the beneficiaries you have named in your will, whether they are heirs or not. Your beneficiaries could be friends, distant relatives, or a charity. If you have no will, the Courts will determine who your assets go to, according to the intestate rules of succession in the Probate Code. This will not be friends or charities; it will be your heirs at law.
Assets that will be part of the probate estate are such things as assets titled in the name of the decedent, the decedent’s share of an interest he or she held as a tenant in common, ½ of the community property assets if the decedent was married, and other assets such as jewelry, furniture, cars, and other items of personal property.
Assets that will not be part of probate are assets held in joint tenancy with another individual, assets in a revocable living trust, payable on death accounts (POD’s), life insurance proceeds where there is a beneficiary named, IRA’s, pension, and retirement accounts where a beneficiary is named, and assets that are titled as community property with a right of survivorship.
Probate can be quite costly and is governed by the California Probate Code. No matter who you retain to represent you, the costs will be the same because they are dictated by the Probate Code. The statutory fees for attorneys are 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million. Fees for executors or administrators are the same. The time to probate an estate varies depending on the size of the estate, the types of property, the debts of the deceased, and whether there are any objections to the will. The time range can be anywhere from 6 months to over 2 years.
Probate can be a tedious and confusing process for the layman. Petitions for probate can be filed in the downtown Probate Court or the North County branch, depending on where you live. No matter where you live in the county, if you need help with a probate matter, give me a call. Your initial consultation is always free and I am available to meet with you in my office in Rancho Bernardo or in the privacy of your home.