A probate is a legal process in which a will is reviewed by the court to determine whether it is valid. Probate also refers to the administering of a decedent’s will or the estate of a decedent without a will.
The legal process takes place after someone dies. It includes:
- Filing a petition for probate with the probate court with the will attached or
- Filing a petition for letter of administration if there is no will;
- Proving in court that a decedent’s will is valid and authentic;
- Finding, identifying and inventorying the decedent’s property;
- Having the property appraised by an appraiser (Probate Referee) appointed by the court;
- Paying debts and taxes, court fees, lawyer fees, and executor, or administrator fees;
- Distributing the remaining property as the will directs;
- If there is no will, distributing it according to the law of intestate succession
Do I need a lawyer to handle probate and how is the lawyer gets paid?
No. There is no requirement that probate proceedings must be handled by a lawyer. But it is advisable to do so because the proceedings could be complicated for a layman to handle. The attorney fees are paid from estate property based on a simple formula under the California Probate Code:
4% of the first $100,000 in appraised assets on the Inventory and Appraisal then it is
3% of the next $100,000 and then it is
2% of the next $100,000 up to $800,000 and then this percentage scale goes downward from 1% to the next $9,000,000.00.
If the matter is contested, litigated, or other non-standard service is provided by the attorney, then extra fees can be obtained upon court’s approval.
Can you explain in details how does the probate process work?
If there is a will, the person named in the will as executor files papers in the probate court. The executor proves the validity of the will and presents the court with lists of the property, debts, and who is to inherit what decedent has left.
Relatives and creditors are officially notified of the death of the decedent.
The executor must then find, identify, and manage decedent’s assets during the probate process. Depending on the contents of decedent’s will, and on the amount of decedent’s debts, the executor may have to decide whether or not to sell decedent’s real estate, securities, or other property. Then, eventually, the court will grant decedent’s executor permission to pay decedent’s debts and taxes and divide the rest among the people or organizations named in decedent’s will. Finally, decedent’s property will be transferred to its new owners.
If there is no will, an administrator will be appointed by the judge and the same process of finding and managing decedent’s asset, pay decedent’s debts, and divide the rest according to the laws of intestate succession.
How long does the process take and when will the estate gets distributed?
Depending on the complexity of the case, it may take anywhere from a few months to one or more years. If the case is standard, not contested, it will take a few months to a year. If the matter is contested, or complicated, then it will take much longer. At the end of the case, the proceeds of the estate then gets distributed.
Does all property have to go through probate when a person dies?
You may not need to go to probate court to obtain title to property belonging to a decedent. Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property.
One of the ways to decide if you can use a simplified procedure to transfer property is to figure out whether any of the assets have named beneficiaries. That means that the decedent, when alive, named one or more people as beneficiaries to receive the asset when they died. We listed some examples earlier, but here are some common ones:
- Life insurance proceeds;
- Retirement accounts, pensions, or annuities;
- Bank accounts;
- Property in a living trust
Another important way is to figure out how the property is owned (the type of title ownership). For example:
- Was the property owned in joint tenancy? If so, the surviving owner gets the entire property.
- Was the property community property with the right of survivorship? If so, the surviving spouse or partner would likely get the entire asset.
- Was the bank account owned by different people? Or was it to be transferred to one person upon death?
Benefits like social security survivor benefits or benefits as a dependent of a deceased veteran can usually be collected without probate court.
It can be difficult to figure out whether you can use a simplified informal process to transfer property. In addition to assets that already have a designated beneficiary (like a life insurance or a bank account), estates with a value of $166,250 or less may qualify for a non-formal probate case. Also, if you were married to, or in a registered domestic partnership with, the decedent, you may be able to follow a simple process to have your property rights determined.
If the total value of these assets is $166,250 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get most banks and us.
What is intestate succession?
If a California resident dies without a will or trust, they die "intestate" and the laws of intestate succession are used to determine who will inherit the estate. Determining the heirs involves answering a series of questions about the person who died.
The first question is whether the decedent was married.
- If the decedent was not married, the estate is distributed as follows:
- To the decedent's children, who take in equal shares if they are in the same generation;
2. If there are no children or other issue (issue is the legal term for children, grandchildren, great-grandchildren, etc.) living, the estate goes to the decedent's parents;
3. If there are no parents living, the estate is distributed to the "issue of the parents." If the decedent had brothers or sisters, they will inherit the estate. If there are deceased brothers and sisters, and they had issue, the issue will inherit the share of the estate that the deceased brother or sister would have inherited;
4. If there are no brothers or sisters, the decedent's grandparents will inherit the estate;
5. If there are no living grandparents, then the "issue of the grandparents" will inherit the estate. This could include the decedent's aunts and uncles, or if there aren't any aunts and uncles, the decedent's cousins. Generally, the oldest generation that has surviving issue will inherit, but if there are deceased issue in that generation, their issue will inherit their share;
6. If there are no cousins, Probate Code section 6402 provides that the estate will be distributed to "next of kin in equal degree," generally meaning more distant cousins.
If the decedent was married, the first question is whether the decedent owned community property, separate property, or a combination of the two. Community property is generally defined as the assets acquired during marriage from earnings or salary. Separate property is generally defined as assets brought into the marriage when the decedent got married, inheritances to the decedent, or gifts to the decedent. However, California case law provides many exceptions to these definitions, and assets can change from community to separate property, or from separate to community, by combining assets, by improving separate property with community property, or by written agreement of the spouses, for example.
- The decedent's community property goes to the surviving spouse, who may have to file a spousal property petition to establish ownership.
2. The decedent's separate property is distributed as follows:
a. The surviving spouse receives all of the separate property if the decedent is not survived by issue, parents, brothers, sisters, or children of a deceased brother or sister.
b. The surviving spouse receives one-half of the separate property if the decedent had only one child, or issue of a deceased child.
c. The surviving spouse receives one-half of the separate property if the decedent left no issue, but left parent(s) or their issue.
d. The surviving spouse receives only one-third of the separate property if the decedent left more than one child.
e. The surviving spouse receives only one-third of the separate property if the decedent left one child and the issue of one or more deceased children.
f. The surviving spouse receives only one-third of the separate property if the decedent left the issue of two or more deceased children.
However, all of the above considerations are irrelevant if the decedent had a will or living trust.
Consult us if you have any questions or concerns