The probate process explained

The passing of a loved one is a difficult time, and the need to settle their estate can only make matters worse. Without a Trust in place, the estate will have to go through probate.

Probate is a costly, emotionally taxing, and complicated process. Numerous, complex laws govern the probate process in California. Elizabeth A. Tresp, Attorney at Law, will guide you through the probate process with care, compassion, and confidence.

With Elizabeth’s guidance, you will avoid the pitfalls that can lead to significant and costly errors.

THE PROBATE PROCESS

When a California property owner dies, most assets not held in Trust must be administered and disposed of under court supervision as governed by the decedent's Last Will and Testament. If there is no will, State law governs the administration and distribution. Unfortunately, this process causes delays and can eat up a large portion of the estate.

If at all possible, probate should be avoided. The probate process can take at least six months, or even up to several years. There are many different approaches under California probate law that can allow someone to avoid probate. For example, if a trust is in place, assets governed by the trust are administered and dispositioned in accordance with the trust, avoiding probate.

There will be cases when probate cannot be avoided. If that is your circumstance, then the process must be started in order to transfer ownership of the decedent’s property to the beneficiaries.

OUR PROBATE SERVICES

Elizabeth A. Tresp, Attorney at Law will administer the decedent’s estate, identify and distribute assets to the beneficiaries, and can provide services for other issues that may require the attention of a probate court, including the following:

  • Petitions for probate
  • Trust administration
  • Probate litigation
  • Conservatorships
  • Guardianships
  • Lost Wills
  • Will contests
  • The removal of executors and trustees
  • Post-mortem tax planning 

Elizabeth A. Tresp, Attorney at Law also represents clients in probate cases involving real estate, stocks, bonds, and other investment forms. If your probate case involves a tax controversy matter, such as unpaid income taxes owed by the decedent or estate taxes, Elizabeth is an accomplished tax law specialist, with a Master of Laws in Taxation from the University of San Diego. She is the right attorney to guide you through the entire process.

HOW DOES THE COURT MANAGE THE PROBATE PROCESS?

  1. In the will, a person nominated as the Personal Representative will file a petition with the Superior Court asking to be appointed as Personal Representative.
  2. If no will exists, persons may petition to become Personal Representative in a prioritized list that is governed by the Probate Code.
  3. The will also is filed with the petition, and notices are sent to heirs and/or relatives, informing them of the date of the hearing.
  4. Even if the will is uncontested, and there are no objections to the petition, the hearing will still take place, to resolve any problems that may have arisen. In some cases this may mean that the will is determined invalid, or perhaps someone other than the original petitioner is chosen to administer the estate. Most of the time, however, there is no objection and the petition is granted.
  5. Next, the Personal Representative will inventory the estate's assets, locate creditors, pay bills, file tax returns, and manage the estate assets.
  6. Upon completion of all Personal Representative’s duties, another petition is filed with the court requesting the distribution of the estate to the beneficiaries. If the petition is granted, the assets are distributed to the beneficiaries and final tax returns are filed.

WHAT ARE THE COSTS OF PROBATE?

California probate lawyers charge statutory fees, as governed by California Probate Code §10810. This code sets the amount, but higher fees can be ordered by in more complicated cases. Probate is generally more expensive than setting up a California Trust.

The Probate Code sets the fees that can be charged by a probate attorney as follows:

  • 4% of the first $100,000 of the estate;
  • 3% of the next $100,000;
  • 2% of the next $800,000;
  • 1% of the next $9,000,000;
  • and 1/2 percent of the next $15,000,000.
  • Estates larger than $25,000,000 are subject to a court-determined fee for the amount that is greater than $25,000,000

Unlike a trust, any will may be subject to probate in California.

HOW IS THE VALUE OF THE ESTATE DETERMINED?

Generally, the estate is determined by performing an inventory. Debts are excluded when determining attorney's fees. For example, if a house in the estate is appraised at $2,000,000 but has a mortgage of $1,200,000, it will still be valued as a $2,000,000 asset for the purpose of calculating attorney's fees.

HOW IS THE ESTATE APPRAISED?

Probate referees, appointed by the State Controller, appraise estates. Probate referees determine fair market value for the assets. That fair market value includes mortgages and other debts, which can result in an appraisal of the property that is higher than the equity that the deceased owned in the property. Probate referees are paid a fee based on 0.1% of the appraised assets.

The fee charged to file a probate petition is $320, but may be higher in some counties due to surcharges. On top of the statutory fees, the county also charges appraisal fees, publication costs, and other miscellaneous fees. A typical estate might incur $1,000 to $3,000 in court costs and other mandated fees.

WHAT ARE THE ADVANTAGES OF PROBATE?

A judge controls the proceedings and can resolve disputes between heirs or disputes that may arise between heirs and the Personal Representative. Any creditors notified of the probate are required to submit their claims against the estate within a four-month period. The Personal Representative is generally required to prepare an accounting and report of their activities.

WHAT ARE THE DISADVANTAGES OF PROBATE?

Higher cost. The cost of administration of a living trust for a similar estate is usually much lower.

Slower resolution. Moving an estate through probate will take longer than administering a trust.

If you are domiciled in the State of California or own California real estate, or if you are an heir to an estate subject to administration in California, contact Elizabeth A. Tresp, Attorney at Law right away. Elizabeth can guide you through the probate process and help you resolve tax issues that may that come up in probate.

Source: http://www.tresplaw.com/blog/2014/9/19/the...