Probate

Probate in Southern California is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. It is mandatory for all assets that are not properly funded to a Trust.

The probate process includes:

• Proving the validity of the Will (If there is one)
• Appointing someone to manage the estate (the “administrator” if there is no will or the “executor” if there is one)
• Creating an inventory of the estate property.
• Obtaining an appraisal of the estate property
• Paying any debts or taxes (including estate taxes)
• Distribute the property

What’s so bad about probate in California…and what should I do next?

A common sentiment among Southern California residents is that probate can be quite challenging. It often proves to be costly, time-consuming, and entails a public disclosure of personal matters.

To sidestep the complexities of probate, proactive planning is the key. However, if you find yourself in a situation where navigating probate courts is inevitable for settling a loved one’s estate, the most prudent course of action is to become informed and seek assistance. By educating yourself and enlisting support, you can expedite the process efficiently and cost-effectively.

How does the Probate Process Commence in California?

In California, the initiation of probate is typically undertaken by the individual identified as the Personal Representative (aka Executor or Administrator) in the Will. This involves filing the original Will with the court and submitting a formal petition to initiate probate proceedings. In situations where there is no Will, it is common for a close relative of the deceased, anticipating an inheritance, to initiate the probate process by filing the necessary petition.

Who will the Personal Representative be?

If a Will exists, the designated Personal Representative in the document is generally approved by the Court to assume the role, provided they meet eligibility criteria. In instances where the designated Personal Representative is unable or unwilling to serve, or if there is no Will, any interested family member or individual has the right to petition the Court for appointment as the Personal Representative.

Probate Expenses:

In addition to Court filing fees, appraisals fees, storage fees, and accounting fees, California law provides that the Personal Representative and the Attorney each get paid according to following compensation schedule based on a percentage of the assets of the probate estate:

• 4% of the first $100,000

• 3% of the next $100,000

• 2% of the next $800,000

• 1% of the next $9,000,000

• ½% of the next $15,000,000

• For all amounts above $25,000,000, a reasonable amount to be determined by the Court.

The California Probate Court can order additional fees for more complicated cases or extraordinary services.

For instance, in a straightforward uncontested probate (where everyone agrees) for an estate that has only a $1,000,000 home (even if it has a mortgage of $500,000), the Personal Representative and Attorney will each receive $23,000. Thus, the estimated total expenses of the probate will be $23,000 Personal Representative + $23,000 Attorney + $7500 Court, Appraiser, Accountant, etc. the total estimated cost is: $53,500.00. (This is one of the many reasons why we strongly encourage you to Contact Us to put your estate plan in place so this can be completely avoided!)

How hard can being a Personal Representative be?

It is a big responsibility to be a Personal Representative. California’s Probate Code contains statute upon statute of complex legal rules and procedures that the Personal Representative must follow during the Probate and the Personal Representative can be held personally liable for losses to the estate.

Does Having a Trust Eliminate the Need for Probate?

In the majority of cases, yes. If your loved one’s assets are held within a trust, the family can engage an attorney to handle necessary paperwork, guiding them through the process without resorting to court proceedings.

Regrettably, some individuals with trusts mistakenly believe they have all aspects covered. However, it’s not uncommon for family members, following the recent passing of a loved one, to discover they are confronted with the challenges, costs, and delays associated with probate—even when a trust is in place.

Why Does This Happen?

Frequently, the trust was drafted many years ago and has not undergone updates. Additionally, the assets of the deceased were not titled in the name of the trust. This underscores the critical importance of selecting your estate planning attorney thoughtfully and routinely reviewing your plan and assets. This ensures that the groundwork laid today functions as intended in the future.

At Kitzes Law, we approach these matters differently than most legal professionals, prioritizing comprehensive planning and ongoing reviews for the seamless execution of your wishes.

Which Assets Fall Under Probate Jurisdiction?

Assets solely registered in the name of the deceased individual become subject to probate. On the contrary, assets passing through specific titles, such as real estate denoted as “Joint Tenants with Right of Survivorship” or bank accounts labeled as “Transfer On Death,” escape the probate process. Additionally, assets passing through beneficiary designations, like life insurance or certain retirement accounts, are exempt from probate. However, in specific circumstances, assets that might typically bypass probate via title or beneficiary designation may still be subject to the process. Consulting with an experienced attorney is advisable.

Who gets the Estate Assets if there is no Will?

In situations where no Will or Trust exists, California laws establishes who estate assets are distributed to. California specifies an order of relations and the first level where one person is alive is the level that determines who the estate assets go to.

How long does the Probate process take?

The timeline for a probate court proceeding hinges on various factors. Theoretically, the process can take one year but it is often double that or longer.

Getting Help: Choosing The Right Attorney For Your Probate Case

The best way to ensure your probate is done correctly is to choose your attorney wisely. You don’t have to use the attorney who prepared the Will.  Just because a particular attorney prepared the Will does not mean that attorney must handle the probate, nor are they necessarily the right person for the job. You need to be comfortable with the attorney and confident that they are the right attorney for you. Choosing your lawyer is one of the most important decisions you will make. If you put in the time and effort to find the right lawyer, you will be rewarded with a skillful guide who will help you navigate the probate process.

Contact Kitzes Law For A Complimentary Post-Death Estate Review

If you’re ready to get started with the probate process after the passing of a loved one, please contact us at (949) 517-2275 or use this link to schedule a complimentary 15-minute consultation to help determine your next best steps. We are prepared to make everything as easy as possible for you. 

During this appointment, we will answer all of your questions about probate and guide you and your family through the next best steps. We are committed to helping you administer your loved one’s estate as quickly and efficiently as possible and look forward to relieving any administrative or legal burdens you may face during this time of loss.