What is probate?

When a loved one passes away and leaves assets that were not in a trust, there is a possibility that those assets will need to go through probate court so that they can be distributed to the beneficiaries. While your loved one may have a will, it is not enough to prevent probate. However, a will may be admitted into probate court so the assets can be distributed according to the decedent’s wishes. Otherwise, assets subject to probate are distributed according to California’s intestate succession laws (the decedent’s closest blood heirs).

As part of probate administration, an individual (usually a family member) will need to petition the court to be appointed as the personal representative of the estate. As the personal representative, that individual has fiduciary duties to the estate and the beneficiaries. Those duties include, but are not limited to, marshalling estate assets, filing an inventory and appraisal with the court, conducting a notice of death by publication, ascertaining creditors, selling property, and conducting a final accounting.

The personal representative needs to keep the beneficiaries informed and provide proper notice to them. Additionally, the representative must inform the beneficiaries regarding any information that might affect their rights. This is especially important when it comes time to performing an accounting of the assets.

While the decedent’s will may list you as a beneficiary, those gifts may not be distributed to the beneficiaries until the probate administration is completed and the court signs an order permitting the assets to be distributed.

Losing a loved one is hard enough. Having to go through probate can be a complicated and time-consuming process. Our experienced attorneys are here to help guide you through the probate administration every step of the way so that you can spend time with loved ones instead of worrying about probate.

How do I know if I need to start a probate for a loved one?

As of April 1, 2022, if someone who is domiciled in California with assets worth $184,500 or more, or if someone owns assets in California that are worth $184,500 or more, a probate will likely be necessary to transfer the decedent’s assets to their heirs. However, not all assets are subject to probate (as discussed below). Additionally, if your loved one passed away prior to April 1, 2022, the $184,500 threshold may not apply because the determination for probate is adjusted periodically for inflation.

Are all assets subject to probate?

Not all assets need to go through probate. The following assets are generally not required to go through probate:

Assets that are held in joint tenancy (including real estate) where there is a surviving individual in the joint tenancy relationship.

  • Accounts that have surviving beneficiaries listed, including bank accounts, brokerage accounts, life insurance, and retirement accounts.
  • Assets that are held in a trust. 
  • Assets listed under Probate Code section 13050 which may include vehicles, vessels, and mobile homes.

How much does probate cost?

Aside from the time it takes to complete a probate, there are significant costs involved as well. The costs that a personal representative needs to pay include, but are not limited to, court filing costs, publication costs, costs for conducting an inventory and appraisal, the cost of obtaining a bond, costs for certified letters, and recording costs.

In addition to the costs, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate pursuant to Probate Code section 10810 as follows:

(1) Four percent (4%) on the first one hundred thousand dollars ($100,000) of the estate value.

(2) Three percent (3%) on the next one hundred thousand dollars ($100,000) of the estate value.

(3) Two percent (2%) on the next eight hundred thousand dollars ($800,000) of the estate value.

(4) One percent (1%) on the next nine million dollars ($9,000,000) of the estate value.

(5) One-half of 1 (0.5%) percent on the next fifteen million dollars ($15,000,000).

(6) For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

To put this in perspective, if the value of a decedent’s estate is $500,000, then the attorney’s ordinary fees under Probate Code section 10810 will be $13,000 (this is calculated by taking $4,000 from the first one hundred thousand dollars + $3,000 from the next one hundred thousand dollars $100,000 + $6,000 from the next two hundred thousand dollars).

In addition to the ordinary fees that an attorney is entitled to, certain probates may occasion the need for an attorney to receive extraordinary fees when a probate is more complex in nature.

How can I avoid a probate?

The best way to avoid probate is to create a trust and fund the trust with your assets. However, it is not enough to merely create a trust – your property (especially real property) needs to be titled in the name of the trust to avoid probate.

If you have questions about probate or forming a trust, please contact one of our experienced attorney’s for a consultation.