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Probate FAQs

The Probate Process: Probate FAQs (Frequently Asked Questions)

Frequently Asked Questions about California Probate- Probate FAQs.The Law Offices of Vincent W. Davis & Associates is dedicated to assisting Southern California residents in dealing with their Probate matters.  In our California Probate practice, we are often asked these questions. Below, is our list of common Probate FAQs which will hopefully answer some of your questions and concerns. If, however, your question is not addressed in this Probate FAQs section and you have another probate-related or any other estate question, we urge you to contact Vincent W. Davis personally to ask his legal advice regarding your unique matter.

Probate FAQs #1: Probate FAQs #1: What is Probate?What is Probate?

This question is the most popular Probate FAQs question we are asked. “Probate” is the Judicial procedure by which a decedent’s Estate is administered and overseen by the California Probate Courts. The Probate Courts were established to supervise probates, establish that your Will is valid (if there is a Will), to make sure that the decedent’s assets are properly accounted for, that all valid creditors get paid if there are outstanding debts, and that the balance of the decedent’s Estate is distributed fairly to the Estate’s Beneficiaries. The Probate process is governed by the California Probate Code.

Probate FAQs #2: Probate FAQs #2: Why must a person's estate go through the Probate process?Why must a person’s estate go through the Probate process?

A deceased person’s Estate must go through Probate in order to transfer legal Title of their assets to their Beneficiaries. The key to a successful probate is the legal “Transfer of Title.” If there was no official process there would be confusion and inheritance contests that would potentially clog up the courts for years for every decedent who left any contested assets. For example, consider a decedent’s home, valued at $250,000, where there are 3 different heirs contesting the percentage of ownership; or perhaps there are creditors who might have claims against the estate. The California Probate Process via the Probate Courts provide a clear and final accounting of the division of the estate’s assets and if creditor claims are valid.

Probate FAQs #3: Probate FAQs #3: What if there is a Will?What if there is a Will?
When a person dies and leaves a Will behind, a legal process called “probate” exists where the courts can establish the validity of the will and have an Executor confirmed to carry out the dictates of the will.  In a California probate, the state probate court monitors the Executor’s actions and approves the final distribution of assets.

Probate FAQs #4: Probate FAQs #4: What if there is no Will?What if there is no Will?

This is without a doubt, the second most asked Probate FAQs we see in our email inquiries. If the person dies without a will, probate may be required, depending on the estate’s assets. California probate law will eventually decide who are the legitimate beneficiaries. When there is no Will the estate is considered “Intestate” and must still pass through the Probate Process. Instead of an Executor, there will be an Administrator appointed to see the probate through from beginning to completion. An Administrator’s duties are very similar to an Executor’s with a few small exceptions because there is no Will to make the decedent’s wishes clearly known.

Probate FAQs #5: Probate FAQs #5: When is Probate required?When is Probate required?

Depending on the value of the estate’s assets, Probate may be required when a person dies “Intestate” (i.e. without a Will). In most cases, Probate is also required when a person dies with a Will (“Testate”). If a decedent leaves a Will, the decedent’s Estate would benefit from going through Probate so as to properly and officially transfer title of your the estate’s assets to heirs and beneficiaries.

Probate FAQs #6: Probate FAQs #6:Is there any benefit for an Estate to go through Probate?Is there any benefit for an Estate to go through Probate?

In some cases, probate may offer a welcome process. For some unique situations, such as a fractured, dysfunctional and bickering family, might offer the advantage of going through the probate process whereby an estate’s liquidation and disbursement is overseen and monitored by the courts which can step in and make decisions on disputes between heirs and also with any creditors.

Probate FAQs #7: Probate FAQs #1: Were You Named Executor of a Will?Were You Named Executor of a Will?
Another common area brought to the attention of Probate Lawyers and one of our common Probate FAQs. If you have been appointed Executor of a Will and want to act as the Executor, you must first file the Will and a “Petition for Probate” with the Probate Court. If the “Petition for Probate” is approved, the Court will issue an Order and Letters Testamentary. These documents will provide you, as the Executor, with the legal authority to proceed to probate the estate. Obtaining an Order and Letters Testamentary will only occur after a “Petition for Probate” has been filed, approved by the court and a hearing has transpired.

Probate FAQs #8: Probate FAQs #8: What are the Responsibilities of an Executor of a Will?What are the Responsibilities of an Executor of a Will?

A big request for more and more discussion on our Probate FAQs section!

The named Executor initiates the probate action and has himself or herself confirmed by the probate court as the Executor.The court-approved Executor of a Will files a Petition for Probate and gives notice to appropriate parties of the hearing date. The court may insist that the Executor will need to post a Surety Bond to guarantee the proper handling of the estate. Surety Bonds of any significant amount are subject to the Executor’s credit rating and net worth, which may affect the price, or determine if the applicant will even qualify for a bond at all. The Executor has the duties of Inventorying assets of the Estate, maintaining the Estate, paying ongoing bills such as mortgage payments and utilities, paying any outstanding debts owed to valid Creditors (including taxes). If the Executor is short of liquid assets and short on funds, the Executor may need to sell some assets to be able to cover the debts. The sale of significant assets may need the approval of the Probate court and are frequently contested by heirs and Beneficiaries making for a stressful process where having a Probate Attorney on the Executor’s team a good idea.  

As the Executor nears the end of the Probate process he or she will file a “Final Accounting” and “Final Petition for Distribution.”  A court hearing is then held in which the court approves the final distribution.  The executor carries out the final approved distribution by distributing the remaining assets to the Heirs and Beneficiaries, and applies for final discharge. These numerous duties and responsibilities are time consuming tasks that may take from 12 to 18 months to administer. Proper records must be maintained by the Executor to do their job properly. Fortunately, Probate Rules have established appropriate compensation that can be paid to the Executor by statute for this invaluable service.

Probate FAQs #9: Probate FAQs #9: Does the Executor Need to Hire a Probate Attorney?Does the Executor Need to Hire a Probate Attorney?

An Executor of a Will is not required to hire a Probate Lawyer. The real question the appointed Executor should ponder is the value of hiring a Probate Attorney to handle the administration of the probate or, minimally, become the Executor’s right-hand legal adviser who can prepare or oversee the preparation of petitions and forms, accompany the Executor to court appearances (or show up on behalf of the Executor), and deal with the more complex issues that arise.

If sticky situations develop where heirs, beneficiaries, or creditors begin to complain or threaten legal action, a “disinterested” 3rd party Probate Attorney will have the experience and people skills necessary to negotiate compromises between the squabbling parties. Unfortunately, Executors are often spouses, adult children, Heirs or Beneficiaries themselves, and might be better served having a Probate Attorney deal with controversial or emotionally-charges disputes as they surface that may otherwise cause long-lasting resentments toward the Executor for years to come. Executors should be prepared that they are going to be the targeted individual who might be personally sued by Creditors and Beneficiaries if the Probate is contested or administered incorrectly. Moreover, a Probate Attorney’s compensation is statutorily set by the Probate Code (exactly the same as the Executor’s compensation) and is paid from the funds of the Estate. An Executor is not expected to personally pay for the services of a Probate Attorney.

Probate FAQs #10: Probate FAQs #10: How are Probate Fees calculated?How are Probate Fees calculated?

California Probate Fees are established by California Probate Code 10800. The Fees are calculated by a sliding scale of percentage values based on the valuation of the Estate. The table below is an up-to-date chart of the “ordinary” fees for compensating a Probate Attorney and, coincidentally, the same fees which are to be paid to the Executor (unless the Executor decides to waive all or part of their due compensation). These statutory set Fees are calculated based on the gross value of the decedent’s Estate.

Estate Value Statutory Fee
$100,000 $4,000
$200,000 $7,000
$500,000 $13,000
$1,000,000 $23,000
$1,500,000 $28,000
$2,000,000 $33,000
$5,000,000 $63,000

Probate FAQs #11: Probate FAQs #11: Are there additional costs associated with Probate?Are there additional costs associated with Probate?

Yes. There are filing Fees with the Probate Court, appraisal costs and Probate Code § 10811 also permits the Probate Court to grant additional Fees for Extraordinary Services.

Probate FAQs #12: Probate FAQs #12: What happens if I die owning out-of-state property??What happens if I die owning out-of-state property?

Many California residents own out of state vacation properties in adjoining states such as Arizona, Nevada, and Oregon, and have property all around the country. These circumstances are very common and the Probate Codes have rules accordingly. If a person dies as the sole owner of an out of state vacation property, that vacation property may be subject to probate in the state in which it is located. In these situations, probate here in California (the decedent’s “home state”) must be combined with an “Ancillary Probate” in the “foreign state” in order to legally distribute the out-of-state property to the the Heirs and Beneficiaries. Ancillary Probate is both time-consuming and costly. It will likely prolong the primary California probate a little while longer because other states may require certain documents to be “certified” by the home state’s Probate Court before an “ancillary probate” can begin legally.

Probate FAQs #13: Probate FAQs #13: I am Heir & unhappy with the Executor.  What can I do?I am Heir & unhappy with the Executor.  What can I do?

You, as a valid Heir of the Estate have what is called “standing:” you, as an Heir, have standing to participate in the probate action and contest the actions or even the appointment of the Executor.  It would be best if you consider hiring an experienced probate attorney to make certain that your concerns are well-presented, and receive a fair hearing from the court.

Probate FAQs #14: Probate FAQs #14: Are there benefits of avoiding Probate??Are there benefits of avoiding Probate?

For most families the answer is usually “Yes.” Avoiding Probate, for most estate circumstances will save considerable money that will otherwise be paid out in fees, appraisals, court costs and all manner of little expenses. Avoiding Probate will save a whole lot of time and court appearances as well. A typical Probate will often drag out from 12 to 18 months. Finally, using a Will combined with a “trust” or some combination of estate planning instruments will make transfer of one’s inheritance much faster, less-expensive and keep your family affairs private and out of the public record.

Probate FAQs #15: Probate FAQs #15: Why do people want to avoid Probate?Why do people want to avoid Probate?

Similar to question #14, above, besides keeping a Will from becoming “public record,” most folks are not all that thrilled with the idea that complete strangers in a Probate Court are going to have a say (and likely the final word) in the distribution of one’s Estate (read: all your stuff!). The judge may give the fishing boat you always thought your youngest would more-appreciate to a daughter that never wanted to step foot in the boat, but her no-good husband planted a seed to work through your daughter try to persuade the judge in that direction. Think of the assets you might have: tools, jewelry, 1800’s silver dollars, gold coins, guns, camping gear, vehicles, ATV’s, jet skis, vacation home, etc.). Upshot? – A few hours of planning and less money than you might think, will result in the drafting of iron-clad estate planning documents that one’s Heirs will be so appreciative for effort taken to have drafted.

Probate FAQs #16: Probate FAQs #16: How can you avoid Probate?How can you avoid Probate?

For any given situation, there are generally a few solid choices to choose to avoid Probate. Because the news media and many radio and TV commercials use the term “Living Trust,” that is as good an example as any. ”Living Trusts” are probably the best-known way to avoid subjecting your family to the expense and long, drawn-out hassle of a probate court proceedings following your death.

How A Living Trust Works – The creator of a Living Trust transfers the ownership of their real property from themselves into a trust. The creator and owner of the “trust” controls the trust and can routinely change or add to the conditions of the trust before his or her death. Upon the death of the trust creator/owner, beneficiaries, who are all specifically-listed in the trust, become owners of the property of the trust. Additionally, trusts may even offer tax benefits that more than offset the cost to set up the trust in the first place! Finally, a trust, unlike a public probate, keeps your private financial and estate matters shielded from public scrutiny. There are several other good probate-avoidance techniques, which you can use in addition to or even in place of a Living Trust. The correct “estate planning instrument” that will be the best “fit” for you and your family will ultimately depend upon your unique circumstances.

Probate FAQs #17: Probate FAQs #17: Is joint tenancy a substitute for a will?Is joint tenancy a substitute for a will?

Joint tenancy means that you share in the ownership of property. Property held in joint tenancy will not be part of any probate process so, yes, in the simplest form, it would be a substitute for a will. A powerful feature of “joint tenancy” is that when one owner dies, the surviving co-owner receives the decedent’s share of the property by right of “survivorship.” When a decedent does NOT have a Will, the property transfers outside of “intestate succession laws.” The surviving joint tenant(s) receive(s) the property. Even if the deceased person DOES have a Will, the Joint Tenancy is totally independent of any probate action and any property held in joint tenancy transfers outside of one’s Will. There are other good benefits of joint tenancy, but some drawbacks as well. This is not the page to explore all pros and cons. Call our office if you have a specific question about Joint Tenancy.

Probate FAQs: Set Up a Day, Evening or Weekend Appointment Now

For assistance with your Probate FAQs, probate, please contact The Law Offices of Vincent W. Davis & Associates in Southern California for a complimentary consultation. Consultations are available in Los Angeles, Orange County, and The Inland Empire including Riverside or San Bernardino Counties. We also handle California Probate and Estate matters for out of state individuals.

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