The loss of a family member or friend can bring feelings of anxiety, uncertainty, and grief. The complex Probate Administration process can be difficult to navigate, especially when you are trying to cope and adjust to major changes in your life. If you’re in the midst of grieving, you may wonder whether you can cope with all of the details and complexities of settling your loved one’s affairs.
You don’t have to do it alone. The Law Office of Roger E. Fonseca is here to help by providing you sensitive and empathetic service, and expert guidance in your role as Estate Administrator or Executor, while handling all Probate Court proceedings. Together, we can help preserve your loved one’s estate and distribute it as they intended.
What is Probate?
Many people aren’t sure what the term “probate” means. They tend to think of it only as some long, drawn out, and costly legal formality surrounding a deceased person’s affairs. Technically, probate means “proving the will” through a probate court proceeding.
Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) to his or her beneficiaries. The probate process involves the court appointment of a “personal representative” (also known as an executor or administrator) to handle the decedent’s estate administration. Once the court has appointed a personal representative, the personal representative must:
- Ensure collection and protection of estate assets;
- Determine whether any federal and/or state taxes are due, and if so, pay them;
- Handle payments to creditors (or resolve disputed claims);
- Account to the estate beneficiaries and to the court for all transactions;
- Determine which persons are entitled to receive the decedent’s property, and to distribute that property.
Occasionally, this process isstraightforward, but more often there are complicated issues that must be resolved, such as determining which creditors are entitled to priority of payment when limited funds are available, or determining which beneficiaries are entitled to specific distributions through a Will.
California has one of the more complex probate systems in the country and navigating it alone can be a daunting challenge even in “simple” probate cases.
Who inherits through Probate?
This depends on whether the decedent had a Will. If a valid and enforceable Will exists, the terms of the Will govern the distribution of assets. If there was no Will, California law provides several formulae for determining who the heirs of an estate are. The laws are set forth in California Probate Code §§ 6400-6414 and, depending on the assets involved in an estate, these laws can be difficult to interpret without the assistance of an experienced probate attorney.
How Long does Probate Take?
Probate can be a very lengthy and time-consuming process. Usually probate takes at least nine months from filing the petition for probate through final distribution. California law says the personal representative must complete probate within one year from the date of appointment, unless s/he files a federal estate tax. In this case, the personal representative can have 18 months to complete probate. If probate has not been completed by that time, the personal representative must file a status report to the court to explain what still has to be done and how much time that will take.
If there is a Will contest (a claim filed with the court that all or part of the will is not valid), or the size and complexity of the estate requires extra time, or it is hard to find beneficiaries, the process can drag out. Some probate cases take years to resolve.
Does All Property Have to Go Through Probate?
No. The term “probate estate” refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person’s “non-probate estate.” California has “simplified procedures” for transferring property for estates worth under a certain amount (from $20,000 to $150,000 depending on the circumstances and the kind of property). There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy or Community Property with Right of Survivorship, and life insurance and retirement benefits.
How Much Does Probate Cost?
The cost of probate is set by state law. When all the costs are added up – these may include appraisal costs, executor’s fees, court filing fees and certified copies, costs for a type of insurance policy known as a “surety bond,” plus legal and accounting fees–probate can cost from 4% to 7% of the total estate value, sometimes more. If someone contests the Will, there could be thousands of dollars of litigation costs.
California law provides for attorney and executor fees of 4% each on the first $100,000 in value, 3% on the next $100,000, 2% on the next $800,000 and 1% on assets over $1M, up to $10M. In addition to these fees – known as “statutory fees” – courts often award “extraordinary fees” for services performed which were outside the standard scope of a probate administration.
The personal representative (executor) and the attorney each are entitled to the fee shown below.
If extraordinary services are performed by them, the court will allow a reasonable fee to each above the standard fee.
Do I Need to Hire a Probate Attorney?
Anyone can file a petition for probate, however it is best to work with an experienced probate attorney to ensure your matter is handled properly and concluded as efficiently as possible. Probate laws can be very complex, and the overall process can be very difficult for someone not versed in the particular procedures and challenges of probate.
An experienced probate lawyer will be able to navigate the probate process competently, and will be better equipped to respond to any unexpected situations that may arise during the probate process.
Roger is dedicated to ensuring that he takes care of each of his clients, and that their legal needs are met and exceeded. He offers high-quality legal work and personal client service tailored to suit each client’s particular needs.
Call today to schedule a consult.