Probate can be a complicated process – have a probate attorney guide you through it.
Probate can be frustrating and time consuming, particularly so when you lack the assistance of experienced counsel to get you through it. An experienced probate attorney can guide you through the process expeditiously, help you avoid mis-steps and give you the peace of mind of knowing you will not be stumbling through the process on your own.
Probate is the name for the legal process used to wind up the legal and financial affairs of a decedent. In California probate is usually conducted in the Superior Court in the county where the decedent resided at the time of death. The amount of time it takes to conclude a probated estate varies depending on the assets, other parties involved, and the natures of particular issues that may arise. Uncomplicated estates can be resolved easily with a year, while others may take many years to conclude.
As part of the Probate process, the person who is nominated in the will as executor files a petition with the Superior Court asking that he or she be appointed as executor. If there is no will, the Probate Code allows for persons with statutory priority to petition the court to become administrator of the decedent’s estate. Where there is a Will, it is lodged with the court. After the petition is filed, a hearing date is set and notice of the hearing is sent to the beneficiaries and intestate heirs to let them know when the hearing will be held. If there are any objections to the petition or if the validity of the will is contested, a hearing will be set to resolve any conflicts that have arisen. In some cases this may mean the validity of the will is not upheld, or that some person other than the original petitioner is chosen to administer the estate. In most cases, however, there is no objection and the petition is granted.
Upon being appointed as executor or administrator, the executor or administrator’s first order of business is to take an inventory of the estate’s assets, locate creditors, pays bills, files tax returns, manage the estate assets and give appropriate legal notices where required. When all of their duties are completed, a final accounting and petition for final distribution is filed with the court asking the court to approve distribution of the estate, administrator and attorneys’ fees. If this petition is granted, probate is subsequently concluded upon the distribution of assets to heirs and discharge of the executor or administrator as the case may be.
How much does a Probate Attorney cost?
California Probate Code section 10810 sets the probate attorney fees that can be charged for probating an estate. The court in certain situations can order higher fees as the result of extraordinary services that are performed.
Currently in 2017, the statutory fees that can be charged by a probate attorney are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the probate attorney fees.
In general, the real property and non cash items in a decedents’ estate are appraised by a probate referee appointed by the court, who determines the fair market value without reduction for mortgages and other debts. This results in the appraised value of real property and non cash assets in the estate often being greater than the actual equity. Probate referees receive a fee based upon .1 percent of the assets that have been appraised. Cash and other liquid assets with a readily ascertainable cash value are appraised by the executor or administrator.
Probate proceedings can become complicated by lawsuits, creditor’s claims, taxes and disputes between the beneficiaries and heirs of the estate. In that event the probate attorney or executor can ask the judge to approve fees that are higher than those set by state law.
Can I avoid probate of the estate?
Once someone passes away there is no way to avoid a formal probate of a will or intestate estate where the assets to be probated exceed a certain value set by statute. Even with estates below the statutory threshold, there is a small estate probate procedure that needs to be followed, certain persons and entities that will need to be notified of the decedent’s death and debts that will need to be paid or dealt with by other means.
If you are someone asking this question about your own estate, many times probate and the need for a probate attorney can be completely avoided if you have an appropriate estate plan in place. Sometimes, but not always, trusts, joint tenancies with rights of survivorship and beneficiary designations can be coordinated in ways that completely eliminate the necessity of probate when a pour over will is used. When assets, such as real property are owned as joint tenants, the assets pass to the surviving joint tenant and are not subject to probate. The same is true for retirement accounts with beneficiary designations. The accounts pass directly to your beneficiaries and are not subject to probate. If you have bank and other financial accounts and you have completed Pay on Death designation forms, those accounts will pass outside of probate as well. Your estate planning attorney can advise you as to which estate planning tools would best be utilized to avoid probate in your particular situation.
Madrid Law Group – Probate Attorney conveniently located in Anaheim Hills, CA, just off the 91 Fwy at the Weir Canyon/Yorba Linda Blvd. exits in Anaheim, Hills, CA, serving probate clients throughout Orange and Riverside Counties.
If you would like having an experienced probate attorney represent you in a probate matter in Orange or Riverside County, Email or call today at (714) 769-9129 to schedule your complementary consultation. We are here to help.