California Probate Process
California Probate process is a legal process for distributing the estate of a deceased individual who left assets in his/her name without a beneficiary. It exists to establish title to assets. In California, for estates larger than $100,000 probate generally requires court supervision.
A "normal" probate process without any glitches takes about 8 months from start to finish and begins with the filing of a petition for probate by the executor/administrator. This is done by filing probate forms in the California Superior courts.
Why does there have to be a Probate?Who is the Decedent?
What is a Testator?
What does the Executor do?
What is an Administrator?
What is a holographic Will?
Why does there have to be a Probate if the Decedent left a Living Trust?
What if a Will cannot be located?
Where is Probate Filed?
Do Creditors have to be Paid?
Can someone contest a Will?
Is Probate Expensive?
What happens when the decedent owns land in more than one state?
Is there a link between probate and estate taxes?
Is there a place where wills are registered?
What is a Codicil?
Where do you file probates?
Why does there have to be a Probate?
The short answer is that there does not have to be a probate if the person who died had taken the required steps to cause his/her estate to be distributed without the involvement of the courts.
Probate exists to allow an estate of the deceased individual to be distributed either pursuant to a Will or if there is not a Will then according to the California intestate laws. Understand, it is not something that the government requires; rather it is a service provided by our courts to distribute assets that otherwise would remain titled in the name of the decedent.
Imagine a house being owned by James Smith and he has died. Anyone who wants to buy that house will make certain that he/she is dealing with the person who has the ability to sell the house. An order from the court indicating that James Smith's son, Mike Smith is the executor/administrator of James Smith's estate and has the ability to sell his house is required.
Who is the Decedent?
The decedent is the person who has died.
What is a Testator?
A testator is the individual who has made a Will.
What does the Executor do?
The executor is the person who carries out the decedent's wishes as expressed in the Will. The testator selected him/her in the Will. He/she is the person who hires the attorney and works with the attorney throughout the probate process.
What is an Administrator?
The term "administrator" is used when the decedent died intestate (i.e. without a Will) and is appointed by the probate court to administer the decedent's estate. Other than that, executors and administrators are exactly the same.
What is a holographic Will?
A holographic Will is a Will done in the Testator's own hand and is signed. Ideally the testator will have dated the Will, but under certain circumstances it may be a valid Will even without the date.
Why does there have to be a Probate if the Decedent left a Living Trust?
Many people do living trusts, but fail to retitle some or all of their assets in the trust. In the event that they have left enough assets out of their living trust, those assets may have to be probated.
What if a Will cannot be located?
It is possible that the decedent did not have a Will prepared. If so, then his/her estate is distributed according to the California laws of intestate succession. What that means is that his/her estate is distributed according to a distribution scheme set forth in the California Probate Code.
Where is Probate Filed?
Probate is generally filed in the probate court the county in which the decedent resided.
Do Creditors have to be Paid?
Yes! They must be paid before there is distribution. The estate that a decedent leaves is his/her assets minus his/her liabilities. Liabilities include taxes; credit card bills; mortgages; medical and hospital bills; lines of credit; etc.
When a probate is filed in California, known creditors are supposed to be given notice. There is creditors' claim period wherein creditors have four months to present their claims. That is the biggest single reason that probates take as long as they do.
Can someone contest a Will?
Yes. That does not mean he/she will be successful. The person contesting the Will generally had to demonstrate to a court one of the following: 1. that the Will was improperly executed; 2. that the Will is a forgery; 3 that the decedent was incompetent when he/she signed the will; or 4. that the decedent was subject to undue influence when he/she signed the will.
Is Probate Expensive?
It depends how you look at it. There are attorney's fees; executor/administrator's fees; and miscellaneous fees. The probate costs involved are summarized below.
Attorney's fees are calculated as follows according to the California Probate Code: 4% of the first $100,000; 3% of the second $100,000; 2% of the next $800,000; and 1% of the next $9,000,000. Thus, for a $600,000 estate, the attorney's fee is $15,000 ($4,000 plus $3,000 plus $8,000).
The executor/administrator is entitled to the same fee as the attorney.
The miscellaneous probate costs are primarily comprised of the following:
Petition for Probate: this is a fee that the court receives for handling the probate and ranges from $320 for an estate under $250,000 to $1,135 for an estate between $1,000,000 and $1,500,000.
Publication Fee: notice of probate has to be published in a newspaper. Newspapers can charge whatever they want, but it generally ranges between $200 and $600.
Probate Appraisers Fee: the court will appoint a probate appraiser to appraise the fee. His/her fee is basically calculated as 1/10 of 1% of the assets being appraised. Thus, for a $350,000 estate, the probate appraiser's fee is $350. Frequently he/she has some miscellaneous fees that they add on, but rarely do those exceed $100.
What happens when the decedent owns land in more than one state?
Land has to be distributed according to the laws of the state in which it is located, (i.e. if the land is located in California, then California probate process has to be followed). In the event that the decedent owned land in his/her name in different states, then each state's procedures are going to have to be followed. This may mean that there is a primary probate in the state in which the decedent lived and an "ancillary" probate in the other state(s) in which the decedent owned land.
Is there a link between probate and estate taxes?
No! Estate taxes are for those estates over $2,000,000 (2007-2008) regardless of whether there is a probate or not. On the other hand, the vast majority of probates are for estates less than $2,000,000. Thus, there are 4 possibilities: 1.no probate and no estate taxes; 2. probate and no estate taxes; 3. estate taxes and no probate; and 4. estate taxes and probate.
Is there a place where Wills are registered or recorded?
No, Wills are not registered or recorded in California. If you think that the decedent had a Will you should go through all of his/her possessions and files. Look through his/her address book to see if he/she had the name of an attorney listed. If you cannot find anything, a probate should be filed indicating that there was not a Will. In the event that a Will is found at a later date, it will be filed with the Court at that time.
What is a Codicil?
A Codicil is an amendment to the Will. It is an alternative to having an entire new Will prepared.
Where do you file probates?
We file probates throughout the State of California including Los Angeles, Sacramento, San Francisco, Modesto, Stockton, and other parts of Northern, Central and Southern California.