Probate Attorney Services
Probate is the term used to describe the court process for transferring a decedent’s assets (estate) to the legal heirs or named beneficiaries. Understanding and managing this process can be quite challenging, but meeting with an experienced probate attorney will help you understand the probate process and ensure all of your questions are properly addressed.
It is a common misconception that if you have a Will you avoid probate. That is actually not the case. To avoid probate you must:
- Have a trust
- Have all of your assets beneficiary designated, or
- Have total assets that do not exceed $50,000 in real property and $150,000 total.
Nominating an Executor For Your Will
If the decedent left a Will, the Will will nominate an Executor to probate the Will. Notice that the Executor is nominated, not appointed. The Executor will still need to file a Petition for Probate in court, requesting appointment as Executor. The court will validate the Will, and if there are no objections to the Executors appointment, they will typically be appointed.
Once appointed, the Executor will be issued “Letters”. The court certified letters reflect the Executors legal authority and will be used to gain control over the decedent’s assets. The Executor must marshal the assets, file an inventory with the court, and depending on the asset, have it appraised by an appraiser appointed by the court (probate referee).
What if There is No Will?
If there is no Will, someone, typically an immediate family member who stands to inherit, will file a Petition for Probate with the court to be appointed Administrator (another name for an Executor when there is no Will). That individual will need to have decent credit as the court will require them to be bonded unless all legal heirs (first and second-degree relatives) of the decedent waive bond in writing and the Administrator resides in California.
The rules for addressing creditors are not intuitive. It is important to hire an experienced probate attorney to advise you through the entire process, but particularly through dealing with creditor claims. As Executor, you must determine the validity of creditor claims before they are paid. There are special procedures that creditors must go through in order to get paid (other than secured creditors such as mortgage holders). When creditors fail to follow those procedures, sometimes their right to collect is lost, so don’t go and pay off all of the creditors without first talking to a probate lawyer.
Probate Fees in California
Will or not, the probate fees are expensive and set by the California Probate Code so all California attorneys will charge the same base rate. These are called statutory fees. Those rates are as follows:
- 4% of the first $100,000 of the gross value of the probate estate
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9 million
- 0.5% of the next $15 million
The Executor/Administrator is entitled to the same exact fees as the attorney. For example, if the decedent’s home is appraised at $700,000, the fees are calculated as follows:
- 4% x $100,000 = $4,000
- 3% x $100,000 = $3,000
- 2% x $500,000 = $10,00
- TOTAL: $17,000
Both the Administrator/Executor and the attorney would receive $17,000 making the estate eat $34,000. There are then additional hourly fees due for certain work that is considered “extraordinary” such as the sale of real property, for which the attorney will bill at their set hourly rate for all time spent related to the sale of the home. This also doesn’t account for the court and appraiser fees.
While some family members will serve as Executor and waive their right to fees, many won’t. Many will also say they want to waive their fees at the outset, but once they go through the process and realize how much work it is, they decide they do want to be paid for their time.
Unfortunately, the expense of the probate process will often decrease an estate significantly and takes much longer than most people expect. California is experiencing the most severe budget cuts to our judicial system in history. This has resulted in massive layoffs of staff and delayed court proceedings. One should expect the probate process to take one year in a best-case scenario but typically this process can take 1-2 years as it can go on for years depending on the complexity of legal issues and family dynamics.
Creating a trust avoids the expensive, lengthy, and public probate process. If you have questions regarding probate, or think you need to hire a will attorney, please call Kam Law Firm today for a free consultation with one of our experienced probate attorneys at (619) 535-1405.