If you are here to learn about California probate after the passing of a loved one, we first want to say that we are very sorry for your loss.
We hope to provide information that will simplify any legal and administrative headaches you might otherwise face during a difficult time.
If you have experienced the loss of a loved one it can be an emotional and overwhelming time, as there are many legal and financial matters to address.
But you don’t have to navigate this process alone.
Overview of The Probate Process
If your loved one passed away without an estate plan, you may have to go through a long and expensive court process known as Probate.
Probate in California is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased’s name to the deceased’s legal heirs or beneficiaries.
Probate is generally also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
- Distribute the property as direct by the will—or by the state law if there is no will
In California a probate is triggered if a deceased person has $166,250 or more of total assets or real property valued over $55,425 in their individual name and not automatically transferred upon death through a beneficiary designation form.
What’s So Bad About Probate In California … and What Should I Do Next?
Many people have heard that probate is bad news. It tends to be very expensive, it’s time-consuming, and it’s also a public process.
It depends, but one thing is for sure: The probate process is a public process that can be avoided with proper planning in advance.
But if you are now in a situation where you must go through the probate process to administer the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly and with as little expense as possible.
We invite you to call our warm and welcoming team member at 949.260.1400 or schedule a call online. We will help you understand your options and guide you to your next best step. We are here to make this as easy as possible on you.
How is a Probate Started in California?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will with the court and filing a Petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the Executor Chosen?
If the deceased person left a last will that is recognized as valid by the probate court, then the person named in the will as the executor or personal representative typically will be appointed, barring extraneous issues such as that person’s illness or old age.
If the person named in the last will is unable or unwilling to serve as executor, or if there is no will at all, then the probate court may appoint an adult family member, trusted friend, or professional third party.
How Does the Executor Get Paid?
California law provides that the Executor gets paid according to a compensation schedule, based on a percentage of the assets of the probate estate.
Could I Be Held Personally Liable for Making a Mistake as an Executor?
Being an Executor is a big responsibility.
California’s probate code contains pages upon pages of complex legal rules and procedures that an Executor must follow during the probate process. Also, there are certain deadlines that an Executor must meet in filing papers with the Court and providing notice to interested parties.
If an Executor does not comply with any of these rules, they can be held personally liable for any losses to the estate.
My Loved One Had A Trust…Will We Need to Go Through Probate?
In most cases if your loved one left a trust as the cornerstone of their estate plan, then no you do not need to go through probate.
However, there is one big caveat here: The deceased must have ensured that all of his or her assets were properly titled in the name of the trust or properly named the trust as beneficiary in order to completely avoid probate.
Unfortunately, not all estate planning attorneys who draft a trust for their clients ensure that assets are properly owned and beneficiaries are properly designated.
Time and again we have helped family members of a recently passed loved one who found out title and beneficiary designations were not proper, and then they face the frustration, expense and delay of a probate proceeding even though the person they loved had a trust.
You may be asking: Why is that?
Oftentimes, a trust was prepared many years ago and was never updated. Assets changed, the law changed, but the trust only got more out of date. That is why it is so very important that you carefully choose your estate planning attorney who will meet with you for regular reviews of your estate plan and your assets so that the planning you do now works as planned later.
This is why we do things so differently than most other lawyers here at Morgan Law Group.
What Assets are Subject to Probate?
As a general rule, assets owned solely in the name of the deceased person are subject to probate.
By contrast, assets with title designated as “joint tenants with right of survivorship” are not subject to probate and pass by operation of law to the surviving joint owner. Also, assets with a “transfer on death” or “pay on death” designation, such as life insurance and retirement accounts, are not subject to probate and pass by operation of law to the designated person.
In some situations, however, assets that would otherwise pass by title or beneficiary designation to a specified person can be subject to the probate process. Please call us if you have questions about your specific situation.
How Are Probate Assets Distributed If There Is No Will?
When there is no will or trust to dictate who receives what, then probate assets will be distributed according to California law.
In other words, the state legislature has made their best guess as to who you would want to receive your assets.
The typical hierarchy is that all probate assets go to your surviving spouse; or if you do not have a surviving spouse, then all probate assets are split equally among your children; and so on following the branches of your family tree.
Where it gets tricky is if you have any “blended family” scenarios. Things can get complicated quickly when you rely on state law alone instead of doing your own planning upfront.
How Long Does Probate Take?
The length of time of a probate will depend on several factors. It usually takes a minimum of 12 months and can take up to two years or even longer for complex cases.
How much does Probate Cost?
Probate legal fees are set by state law under California Probate Code Section § 10810 and are determined based on the size of the probate estate as follows:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9,000,000, plus additional fees beyond that
The Personal Representative (i.e. Executor or Administrator) is also entitled to the statutory fee for their services. The California Probate court can order additional fees for more complicated cases or extraordinary services. There are also court costs and filing fees, document certification and recording fees, and property appraisal fees.
How To Choose the Right Attorney for Your Probate Case
The best way to ensure your probate is done right is to choose your attorney wisely.
Do not assume that all attorneys are the same!
Too many lawyers only “dabble” in probate or trusts. Don’t choose a lawyer who does probate “on the side” because these lawyers often blunder causing real problems for their client and their cases often take longer than those handled by experienced probate lawyers.
Plus, please know you are not required to hire the attorney who drafted the Will!
Just because a particular attorney prepared the Will, this does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you.
Choosing your probate or trust lawyer is one of the most important decisions you will make.
If you put in the time and effort to find the right lawyer, you will be rewarded with a compassionate adviser who will help you navigate the probate process with minimum headache and hassle.
“What Do I Do Now?”
If you are ready to get started with the probate process after the passing of a loved one, please contact us and we will help determine your next best steps.
We are here in service to making this all as easy as possible on you, and we look forward to relieving any administrative or legal burdens you may face during this time of loss.
Contact Morgan Law Group for a No-Charge Post-Death Estate Review
To learn more about the probate process after the passing of a loved one, we invite you to call our experienced probate attorneys at 949.260.1400 or Book a 15-minute Call. We will help you understand your options and guide you to your next best steps.