Frequently Asked Questions About Probate
What is Probate?
Probate generally refers to the formal court supervised administration of a decedent's estate.
What common assets are not subject to probate?
- Assets held in a Living Trust.
- Payable on death assets, such as retirement accounts, annuities, and life insurance policies. However, such assets may be subject to probate if all the beneficiaries you name die before you.
- Assets held in Joint Tenancy.
- Property which passes to the Surviving Spouse. Even though a formal probate may not be necessary, court involvement might be needed to transfer the asset to the surviving spouse.
- Small Estates. Very generally, if the total collective value of assets which are not payable or transferable on death is $150,000.00 or less, no probate is required to transfer such assets after death. Such assets can be transferred, usually by a declaration executed pursuant to probate code section 13100, but no sooner than 40 days after death. Such assets may include the decedent's automobile or small bank accounts solely in the decedent's name at death.
How does probate work?
Probate is initiated when an individual, such as the named executor of the will (if there is one), files a petition requesting that the will be admitted to probate and that the court appoint the petitioner as the personal representative of the estate (often called the "executor" or "administrator".) Probate provides safeguards: the acts of the personal representative are subject to court approval; some acts require court approval before they can be taken.
When the estate is ready to be distributed, the personal representative often has to submit a formal account to the court, itemizing estate income, expenses, and sales, for the court's approval.
If I sign a "pourover will", doesn't that mean there has to be a probate when I die?
No. Whether probate is required depends on the total value of assets which are not payable or transferable on death. Even where the probate is not required, the decedent's will is often the basis for the declaration under California probate code section 13100, used to transfer assets after death if no probate is necessary.
What does probate cost and how long does it take?
In most probates, the attorney who represents the personal representative of the estate, as well as the personal representative, are each entitled to a "statutory fee" based on the estate accounted for. The estate accounted for is the appraised value of the estate, often adjusted by receipts, and gains and losses on sale. The formula is set forth in the California probate code, at sections 10800 and 10810. You can view these code sections at http://leginfo.legislature.ca.gov/faces/codes.xhtml .
As an example, if the estate accounted for is $500,000.00, the fee for a personal representative and his or her attorney, payable to each, would be $13,000.00:
- $4,000.00 for the first $100,000.oo; plus,
- $3,000.00 for the next $100,000.00; plus,
- $6,000.00 for the final $300,000.00 of estate value
(2% of $300,000.00)
The personal representative is often the beneficiary of the will. In many cases, he or she may waive the right to compensation, since compensation is taxable and an inheritance is not.
In addition, there are probate costs such as the filing fee, the fee charged by the referee to the appraise the estate assets, the cost of publishing notice of the hearing for probate, certification charges, and so forth, which will add perhaps as much as an additional $2,000.00 to the overall expense.
A personal representative who is appointed by the court has the power to administer the estate. This will often include selling the home and other estate assets, filing tax returns, notifying creditors, paying the debts, etc. What the personal representative cannot do, usually until the end of probate, is distribute assets to the beneficiaries. Distribution requires a court order which often will not be granted until the administration of the estate is complete. Typically, that will be close to a year after death.
I need to file my father's will for probate, but it's in his safety deposit box and the bank won't let me get it out. What can I do?
If you have the key to the box and certified copy of the death certificate, California law allows you to obtain access to the safe deposit box foro the purpose of removing the will as well as making an inventory of the contents of the box. If necessary, and it probably will be, tell the bank to read probate code section 331.
My parents signed a Living Trust, but they did not re-title the family home in the trust name before they died. Will probate be required?
In many instances, no. A court can make an order finding that the home is in fact an asset of the trust if you can prove that was your parent's intent. That order will allow you, as the Successor Trustee, to sell or distribute the home as though it had been titled in the trust name. The petition requesting such an order is usually referred to as an "Heggstad petition", or an "850 petition" (which references the probate code section frequently used for such petitions.)