The California Probate Process and Associated Fees
Statistically it is better to try to avoid probate. In some rare cases, probate is the best alternative as the courts supervise the entire process, which in some estates is a benefit. Also in a probate sale of assets, the sale is final. However, with that said the negatives far outweigh the benefits for most cases.
WHAT IS PROBATE? Probate is a court process where the court ensures no stone is left unexamined. Every possible heir is noticed in a public proceeding wherein the court has the authority to rule on every step of the process.
WHAT HAPPENS DURING A PROBATE? The person who has possession of the will files it with the court within 10 days of death. The person named in the will as executor files a document in the Probate Dept of the Superior Court asking for authority to proceed with starting the estate. This process is a necessary step to take possession of assets and open an estate bank account. If there is no will, the court appoints the most logical candidate.
Notices are sent to the heirs and/or relatives to let them know when the hearing will be held. An advertisement is placed in the legal section of a newspaper, making the process public information.
Objections and validity of the will are the first issues to be resolved.
The executor then starts the process of marshalling the assets to create an inventory of the estate's assets, locates creditors, pays bills, files tax returns and manages the estate's assets.
The executor prepares an inventory that is sent on to the probate referee to determine values for probate purposes. Most of the time, as many assets as possible are liquidated and turned into cash.
The estate will not end until a final accounting is prepared and submitted to the court. In many cases, the heirs waive this requirement to account to the last penny. After the accounting is prepared, then the executor will request that the court approve the final distribution. This process takes from eight months to several years.
HOW MUCH DOES PROBATE COST? California Probate Code section 10810 sets the statutory fees that attorneys can charge for a probate. Extraordinary fees can be ordered by a court when complicated issues arise, such as a legal dispute over ownership of an asset.
Estates under $100,000 are handled on a summary basis with little court action.
Fees for estates up to $25 million filed with the court are:
four percent of the first $100,000;
three percent of the next $100,000;
two percent of the next $800,000;
one percent of the next $9,000,000;
and one-half percent of the next $15,000,000.
Both the executor and the attorney are entitled to the statutory fee. There is no discount for debts of the estate, as the fee is determined on the gross value of the estate.
ADVANTAGES OF PROBATE: The proceedings are controlled by a judge, who can decide disputes between heirs or between the heirs and the executor. Creditors are required to submit their claims against the estate within a four-month period, provided they have been notified of the probate. The executor is required, in most cases, to prepare an accounting and report of the executor's activities.
