What is Probate?
Probate is the judicial process whereby a will is “proved” in a court of law, accepted as a valid public document that accurately reflects the last wishes of the deceased. Absent a legal will or other estate planning document, probate settles an estate, distributing real property, according to California laws. Granting probate is the first step in the legal process of administering a deceased person’s estate. All claims will be resolved during probate, and all assets distributed, according to a will or other estate planning document. Burlingame, CA estate planning and probate attorney Mark A. Gullotta can help ensure that your and/or your loved ones’ estate is distributed according to your wishes.
Probate determines whether a will is valid, then grants approval of the will to the executor or administrator of the will. The probated will becomes a legal instrument that can be enforced in a court of law when necessary. If there is a will, but no executor is named, the court will appoint an Administrator (also known as a personal representative) to legally dispose of the assets of the deceased as specified in the will.
Pros and Cons of Probate
The negative aspects of probate include the following:
- It can take from six months to two years to complete the probate process;
- Probate is not private—all information is open to the public, and
- Probate is expensive, the attorney and executor each take a percent of the value of the assets to cover personal representative fees and attorney fees. In addition there are bond costs, appraised costs and other costs.
The positive aspects of probate (and believe it or not, there are a few), include:
- The probate process can protect small estates, particularly for those who die without a will;
- If you simply do not have the financial resources to engage in estate planning, it could be preferable to have your estate bear the costs of the probate process after your death, and
- You might actually want the distribution of your assets to be public following your death.
- Probate reduces or may eliminate the time that creditors can make claims on your estate.
Why Would You Want to Avoid Probate?
As noted above, the primary reason people want to avoid probate is due to the time it can take to probate an estate. Sometimes, beneficiaries of a will need the money or assets quickly; waiting for a will to go through probate can be difficult in cases like this. If you are a very private person you might not be thrilled that virtually any person with the least amount of curiosity about what you left to who can easily obtain that information.
Many people choose a trust over a will for this very reason—a trust remains private, while a will, which must go through probate, does not. Probate can be expensive. Choosing to add a trust to your estate plan can significantly cut down on the costs associated with probating a will. While you might still need a will for certain issues—like appointing a guardian for your children—a trust might be the better option if you want to avoid probate. Finally, you can also significantly reduce estate taxes by implementing a trust for most assets.
How California Probate Works
California probate is not as arduous a process as in some other states. First, it must be determined whether probate is necessary at all. If the deceased owned assets in joint tenancy, community property with his or her spouse, or had a living trust, the assets are not required to go through probate. Payable-on-death benefits are also exempt from probate. If the total value of the estate (any assets which cannot be transferred to a beneficiary in any other manner) is $150,000 or less, inheritors may not have to go through probate—they can claim the assets with an affidavit or go through a streamlined “summary” probate process.
If probate is required, an individual must come forward to start the process. If the decedent left a will and named an executor, then the executor would be the person to come forward and begin the probate process. If there is a will, it must be shown to be valid. Once this is done, the court will issue Letters Testamentary which officially grants the executor authority over the estate. If no will exists, a family member usually asks the court to be appointed as the administrator of the estate—a job which is likely to last from six months to two years.
The executor will file the will, along with a document known as the “Petition for Probate” with the probate court in the county where the decedent resided upon his or her death. There will be a filing fee of roughly $435—although some counties charge more or less. It may be necessary to file other forms. Once all forms are filed, then formal notice must be provided to all beneficiaries, family members, and creditors. Once appointed, the executor must inventory all assets belonging to the decedent, apply for a taxpayer ID number for the estate, and open a bank account for the estate. The inventory and appraisal of all property that will go through probate must be filed with the court. In most cases, the executor has the legal authority to sell property from the estate (other than real estate), pay taxes for the estate, and approve or reject claims from creditors.
The executor must keep all the assets associated with the estate safe (insured, maintained, and safeguarded from theft). The executor is responsible for filing tax returns on behalf of the decedent and for the estate. After sending a “notice to creditors,” creditors have only four months to come forward with a claim. While the executor will simply pay all outstanding bills in most cases, formal creditor claims are possible. If the decedent did not leave sufficient assets to cover all creditors and expenses, the law provides an order for claims to be paid from estate assets.
While probate attorneys in most states either charge a flat fee for probating an estate or charge by the hour, in the state of California, probate lawyers are entitled to a statutory fee—a percentage of the value of the assets involved in the estate. Probate attorneys are entitled to four percent of the first $100,000 of estate assets (gross value), three percent of the next $100,000, two percent of the next $800,000, one percent of the next nine million, and .5 percent of the next fifteen million. For any estate worth more than $25 million, the court will determine a “reasonable” amount for probate attorney fees.
How Can an Experienced Probate Attorney Help?
Probate attorneys offer their services for the distribution and settlement of assets after a person passes away. Probate attorneys may be hired in situations where a will exists, as well as situations where no will is found. Having an experienced, compassionate California probate attorney can:
- Allow family members the time they need to grieve without having to deal with court processes;
- Ensure the probate is completed in a legal, professional manner;
- Ensure the process goes smoothly—and as quickly as possible;
- Allow family members to stay united, rather than engaging in disputes regarding a will—or lack of a will, and
- Ensure that certain debts are challenged, particularly when there is evidence of manipulation on the part of the creditor.
California estate planning attorney Mark Gullotta serves the San Mateo County area, such as San Bruno, Millbrae, Burlingame, South San Francisco, Daly City Colma, and the City of San Mateo in California. Mark has been an estate planning attorney for more than 15 years and was certified as one of the top attorneys in North America for the years 2015, 2016, 2017, 2018, and 2019. Offering 15-minute assessments, Mark provides upfront pricing, comfortable planning or implementing process, and a simplified estate process that minimizes any surprises. Contact Mark Gullotta today for knowledgeable legal representation for the probate process and every other type of estate planning issue.
Do You Need a Proactive Probate Services?
Not every case requires Proactive Probate Service. If your situation as a beneficiary is simple, it could be that it would not require such services, let alone even a representation of an attorney.
However, if several beneficiaries are involved, sizable property, and/or a complex will, you may want to seriously consider our Proactive Probate Services in order to save money, agony, and future disputes.
How to find out?
We offer a free assessment of your situation. The outcome can be one of one of several:
- You have a simple case. No need to hire us or another attorney (unless you opt to).
- You have a very complex case. If we feel that you are better off with another firm which specializes in such complex cases, we will be happy to refer you to them.
- Your situation is in between: not so simple, yet not overly complex. We will be happy to advise you of pitfalls along the way and if you wish – help you avoid them through our services.