Chances are you’ve heard the term probate and wonder exactly what it is. Maybe you’ve even heard horror stories from friends or family about what the process involves? Probate is a method of transferring assets as provided in a Will, or if a person dies without a Will, to certain persons designated by state law as heirs. It can be a frustrating, time-consuming and needlessly expensive process, since probate is almost always avoided by the use of a Revocable (Living) Trust. However, because many people die with only a Will, and some people leave no Will at all, it is important to understand the process. And, to have an attorney familiar with the process handle it for you.

The Probate process begins with filing the Original Will with the appropriate court, or if there is no Will, filing a request that the court determine who the heirs are so the property can pass by intestate succession. The court will determine the validity of any Will. Whether or not there is a Will, the court will appoint a person to administer the estate. That person is known as an executor, administrator or personal representative.

The personal representative must collect the assets subject to probate, pay debts and death taxes, and request court authorization to distribute assets to the person named in the will or to the decedent’s heirs. In California, the personal representative and attorney are each entitled to minimum fees as set forth by the California Probate Code according to the following schedule:

4% of the First $100,000.00

Up to $4,000.00

3% of the Next $100,000.00

Up to $7,000.00

2% of the Next $800,000.00

Up to $23,000.00

1%% of the Next $9,000,000.00

Up to $113,000.00

1/2% of the Next $15,000,000.00

Up to $188,000.00

The attorney and personal representative will BOTH receive this amount. In addition, attorneys may also charge extraordinary fees based on their hourly rate.

This fee is calculated on the "estate accounted for," or generally, the gross estate. In addition, the sale of Real Property is supervised by the Court, who will set a minimum price, and the property may be sold at public auction in court.

The Probate process usually takes nine months to two years. However, the size and complexity of the estate determines the actual duration of the probate. Upon final distribution and transfer of all probate assets to the appropriate persons, the court discharges the personal representative.

There are many good reasons to avoid probate. Not only is the process time consuming, it is also public. You can see Walt Disney’s will on the internet! An inventory of all the decedent’s assets is filed in the court, and the Will can be accessed by anyone ambitious enough to look up the court file. The personal representative will be required to account for every penny, and there will be no flexibility regarding the splitting of assets.

In California, most people should consult an estate planning attorney and determine how to avoid the expense and frustration of probate. However, if a loved one of yours has passed away intestate (without a Will), or left only a Will, we can guide you through the process efficiently and compassionately. We can handle the mountains of paperwork and attend court hearings on you behalf. To learn more about our probate services, or to find out how we can help you avoid the probate process entirely, please contact us for a complimentary consultation.