The 7 Most - Frequently Asked
1. How long does a California probate proceeding take?
A "short" or "summary" probate proceeding can take as little
as approximately 30 days. However, not every estate qualifies for the "short"
or "summary" probate proceeding. (See What Is Probate?
- Summary Proceedings.) A "full" formal probate proceeding can be completed
in as little as approximately 6 months from the date that the probate petition
is filed with the court to the date of distribution. But the time can run
longer depending upon the creditor's claims filed against the estate,
litigation, disputes among the beneficiaries, etc. Most probates usually take
six months to a year. The so-called "delay" of probate is usually not a
significant problem. In most cases, family members have prompt access to joint
bank accounts or life insurance proceeds. If special needs exist, the probate
court may allow for preliminary distributions or a family allowance.
2. How much are the attorney's fees?
Most attorneys charge the "statutory fee" for handling a
probate. The statutory fee is set forth in California Probate Code sections
10800-10850. The statutory fee represents the maximum fee for ordinary probate
legal services that may be charged by an attorney. In addition to the statutory
fee, attorneys are entitled to obtain additional fees for "extraordinary
services" such as handling the sale of real property during the course of the
probate proceeding, or assisting in the preparation of tax returns for the
estate. Our firm's practice is to charge a reasonable hourly rate for the
hours that we spend on the case which, in most cases, is less than the
statutory fee. Our fees are negotiable and in almost all cases are deferred
until the end of the probate proceeding. If you are interested in hiring our
firm to handle a probate or trust matter in California, please call Pauline
Reimer at (408) 358-5051 to set up a free initial consultation.
3. What are the other costs that are involved in a
California probate proceeding?
The term "costs" does not include attorney's fees, but
includes the initial filing fee, the publication fee for the publication of the
notice of petition to administer estate and the probate referee's fees. If the
case involves litigation, there may be other costs for such things as
deposition reporters, subpenas, expert witnesses, etc.
4. Can property be transferred without probate in
In some instances, property can be transferred without a
formal probate proceeding. Whether or not a decedent's property can be
transferred without a formal probate depends on the type of assets the decedent
owned at the time of death and/or the nature and size of the decedent's estate.
Certain assets, for instance, may not be subject to probate. (See
What Is Probate? - Property Not Subject to
Probate.) Life insurance, for example, usually passes directly to the named
beneficiary without court confirmation. Property held in joint tenancy may also
pass directly to the surviving joint tenant.
In other cases, some or all of the decedent's assets may
qualify for a "summary probate" or "set-aside proceedings." (See
What Is Probate? - Summary Proceedings.) These
proceedings are less complicated alternatives to a formal probate. For example,
if all of the decedent's property goes to the surviving spouse, a summary
probate proceeding can be used where a "spousal property petition" is filed
with the court seeking court confirmation that the surviving spouse owns the
property. This proceeding can take as little as 30 days. In other cases, if the
total value of the decedent's property otherwise subject to probate is less
than $100,000, an affidavit procedure may be used to transfer personal
property, and the transfer of real property can be confirmed through a
relatively simple proceeding.
However, even if property can be transferred without
probate, it may be beneficial to have a formal probate depending upon the
nature and the size of the estate, the creditor's claims against the estate and
the original tax basis of the assets that the decedent owned at the time of
death. With respect to any decedent's estate, you should consult with an
attorney and have an attorney analyze the entire estate to see if a formal
probate proceeding will be beneficial to the heirs prior to taking any steps to
transfer the decedent's property without probate.
5. What happens if there is a "Living Trust"?
If the decedent left his or her assets in a trust, both the
trustee and the beneficiaries of the trust should seek competent legal advice
immediately after the death of the decedent.
Although a trust may not have to go through "probate," the
trustee should nevertheless obtain legal advice in order to administer the
trust in compliance with the trust document and California law. Being a trustee
is a serious responsibility. Each trust document is different, and the trustee
is required to administer the trust in accordance with its terms. If you have
been named as a trustee you should seek the advice of an attorney after the
death of the decedent to review the terms of the trust and your
responsibilities as trustee. If the trustee does not comply with the various
legal rules and terms of the trust, the trustee may be held personally liable
to the beneficiaries. If you have been named trustee, you will also be required
to perform a number of tasks that require legal and tax advice. Among other
things, these tasks include: providing legal notice to the decedent's
creditors, giving legal notice to the beneficiaries of the trust, filing tax
returns on behalf of the trust, providing detailed accountings of the trust
assets, receipts and disbursements, making distributions to the trust
beneficiaries in accordance with the terms of the trust, and investing trust
assets in accordance with California law and the terms of the trust.
If you are the beneficiary of a trust, it is also advisable
to seek legal advice following the death of the decedent. An attorney can
advise you as to whether or not the trustee is managing the trust assets
properly, can insure that proper and timely accountings are provided, and that
distributions are made properly. Legal advice may be needed if there is any
mismanagement of the trust assets by the trustee, and, in some cases, the
beneficiary may need to take legal action against the trustee.
As stated earlier, our firm's practice is to charge a
reasonable hourly rate for the hours spent on the case. If you are interested
in hiring our firm to handle a probate or trust matter in California, please
call Pauline Reimer at (408) 358-5051 to set up a free initial
6. Who will be appointed
the administrator or executor of the estate?
If the decedent left a will and named an executor in his or
her will that person will most likely be appointed as the executor of the
decedent's estate unless the named executor refuses to act or is unfit to serve
as executor. If the decedent died without leaving a will, the court will
appoint a person to act as the administrator of the decedent's estate.
California law provides a list of relatives designating who has priority to act
as the administrator of the decedent's estate. The court will appoint one of
these relatives in the order of their priority to act as the administrator of
the decedent's estate provided the person is qualified and there are no
objections to his or her appointment. The parties can also request that more
than one individual act as administrators of the decedent's estate.
7. What happens if there is no Will in California?
If a person who resides in California dies without leaving a
will, his or her property will be distributed to those individuals who
constitute the decedent's heirs under California's laws of intestate
succession. The laws of intestate succession determine how the estate will be
divided based on a person's relationship to the decedent, e.g., surviving
spouse, children, other descendants, etc. Determining how the decedent's
property will be distributed also depends on how title to the decedent's
property was held as of the date of death, whether or not the decedent's
property constituted separate property, community property, joint tenancy
property or property belonging to a domestic partnership. Probate of an
intestate estate will still be required unless specific property of the estate
is not subject to probate such as life insurance, etc. In cases of intestacy,
the court will appoint an administrator to handle the probate proceeding -
generally, the decedent's closest relative. If you believe you have a claim to
a decedent's property, you should consult with an attorney immediately after
the decedent's death so that you can protect your rights to the property.
Our firm's practice is to charge a
reasonable hourly rate for the hours that we spend on the case which, in most
cases, is less than the statutory fee.
If you are interested in hiring our
firm to handle a probate or trust matter in California.
Please call Pauline Reimer at (408)
to set up a FREE initial consultation.
Practice devoted to probate, trust administration and estate
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