What is a probate?

When your estate is subject to probate, there are many different steps that need to be taken before the estate is distributed.  When someone dies intestate or has a will when a living trust was required, the estate will be subjected to probate.  In California, real property which has a gross value of over $50,000 and/or  $150,000  in cash assets, that are not beneficiary driven, will be subjected to probate.

If a probate is required to transfer assets, the first step will be the filing of the petition for probate, publication of the notice of probate, the filing of the bond.  After notice of the hearing has been provided and after the first court hearing, the Judge will appoint a personal representative and order that an Inventory and Appraisal is completed.  Finally, the judge will appoint a probate referee. 

The function of the probate referee is to appraise all property in the estate with the exception of “cash” type items.  The trustee of the estate is responsible to provide the referee with the list of property items needed to be appraised.  When the referee has completed the inventory appraisal, the trustee must file these with the court.

After these steps are completed, all known creditors must be given notice and the debts of the estate are paid and all applicable tax returns filed.  After the completion of this step, a final accounting and petition for final distribution is filed.  There is a hearing date and if accepted, the judge will sign an order allowing for the distribution.  Each of these steps will take various amounts of time.  In the California probate court, there is typically a wait of 6 to 8 weeks before you can obtain a court date. 

This process can take as little as one year and often continues for two to three years.  The amount of time it will take to complete the probate and the cost will depend on a variety of factors, such as the size of the estate and the number of beneficiaries and creditors.  The California Probate Code Section 10810 allows statutory attorney’s fees in the amount of 4 percent of the first $100,000, 3 percent of the next $100,000, 2 percent of the next $800,000, and 1 percent of the next $9,000,000.  There are also filing fees, probate referee fees, and other miscellaneous fees and costs.  All of these fees will start to add up, as the probate progresses.

Oftentimes, clients are unaware of the time and expense of probate.  However, with a little planning, this process can be avoided and your estate can be easily distributed to your loved ones, if you use proper planning.