Is my estate “simple” or do I need an attorney?
How long will it take?
What is “probate”?
Do I need to go through probate?
How much will it cost?
Will I have to go to court?
What if there is no will?
What if I don’t live in California?
Can I get money out of the estate before it’s settled?
What does an “estate representative” or “executor” do?
What about taxes?
Is my estate “simple” or do I need an attorney?
The law does not require you to hire an attorney to settle an estate. Most estates are not complicated and can be settled without the advice of an attorney, although some cases may have problems that require special handling or legal advice. Some examples are:
- Ambiguities in the will
- Contested claims against the estate
- Unfinished contracts
- Insolvent estates (more debts than assets)
- Substantial property given to a minor
- Complicated assets such as a going business owned by decedent, royalties, or copyrights
- Separate and community property commingled by a married couple
- A large disputed claim filed by a creditor
- An heir or beneficiary can’t be located
- Someone challenges the will or your right to settle the estate
How long will it take?
A formal probate court proceeding takes a minimum of from seven to nine months. However, if one of California’s “summary” procedures can be used it can take just a few months.
What is “probate”?
Technically, probate means “proving the will” through a probate court proceeding, but the term is often used broadly to describe the entire process by which an estate is settled and distributed. The decedent (person who died) may own several types of assets (bank accounts, vehicles, stocks, real property). All property owned by the decedent at the time of death, no matter what kind, is called the “estate.” To get this property out of the name of the decedent and into the names of the persons who inherit it requires a legal bridge. The formal probate process is one of these bridges. It accomplishes three things:
- determines what property is owned by the decedent,
- pays the decedent’s debts and taxes, if any, and
- distributes the remaining property to the those legally entitled to it.
Do I need to go through probate?
Not all estates require a formal probate court proceeding. Assets that have named beneficiaries, or that pass to survivors by operation of law (joint tenancy property), do not require probate. And small estates can be transferred with “summary” procedures without formal probate. Some examples are:
- joint tenancy property
- life insurance with a named beneficiary other than the decedent’s estate
- estates with a gross value less than $150,000
- pension plan distributions with named beneficiaries
- property in living trusts
- money in a bank account that has a named beneficiary who is to be paid on death
- IRAs or other retirement plans that have named beneficiaries, and
- community property or separate property that passes outright to a surviving spouse or domestic partner.
How much will it cost?
The usual costs of a formal court proceeding in California include court filing fees, probate referee’s appraisal fees, miscellaneous certification and recording fees and attorney’s fees. Court costs can run over $1,000. By far, attorneys’ fees constitute the largest expense of a probate proceeding. The attorney’s fee is based on a percentage of the gross value of the probate property, regardless of liens or encumbrances against the assets. For example, if an estate has a gross value of $500,000 (today little more than a house and car in California), the attorney may charge a statutory fee of $13,000. Estates under $150,000 normally do not require formal probate, but many attorneys refuse to accept small probate cases. The most significant problem with the percentage compensation system is that it has little or nothing to do with the amount of work an attorney actually performs. At Probate Direct, we charge a flat fee of $3,500 to prepare and process all the forms to complete a formal probate court proceeding, regardless of the size of the estate. For summary administration and other procedures, we charge $100 an hour. Filing fees and other court costs are not included in Probate Direct’s fee.
Will I have to go to court?
A court appearance is often not required if the forms are prepared correctly and the court has no questions, although some counties may require an appearance if the petitioner requests that bond be waived. Many counties now allow an appearance by telephone if arrangements are made in advance.
What if there is no will?
When the decedent did not leave a will (and many people don’t), the heirs are determined according to state law:
- The surviving spouse or registered domestic partner inherits all community property.
- The surviving spouse or registered domestic partner inherits either one-third, one-half or all of the separate property, depending on whether the decedent is survived by one or more children or other close relatives.
- Separate property not inherited by the surviving spouse or domestic partner is divided into fractional shares and distributed to the children, parents, grandparents, or brothers and sisters.
What if I don’t live in California?
A personal representative who lives outside California may need to travel to California to make initial arrangements in settling the estate. After that, the probate proceeding can usually be completed by e-mail, regular mail, or fax, and often without a personal appearance in court .
Can I get money out of the estate before it’s settled?
With a few exceptions, distributions to estate beneficiaries, cash or otherwise, cannot be made without a Court Order. Usually, this is not until the four-month creditor’s claim period has expired and the probate proceeding is ready to close and the Order for Final Distribution is signed and filed.
What does an “estate representative” or “executor” do?
The duties of the estate representative, called “executor” or “administrator”, are to oversee the deceased person’s property and safeguard it until all obligations of the estate are met and the remaining assets are distributed to the proper persons. The only basic requirement is to be trustworthy, and reasonably organized.
What about taxes?
Beneficiaries usually want to know if they will have to pay taxes on the property they inherit. In most cases the answer is “no”. California no longer has an inheritance tax, and for deaths in 2012 a federal estate tax is imposed only on estates over $5,120,000, and the exclusion amount for deaths in 2013 is $5,250,000. The only tax involved is usually income taxes. The executor or administrator or survivors of a decedent are responsible for seeing that the decedent’s final income tax returns are filed and any taxes due are paid before the estate is distributed.
Disclaimer: None of the information contained in this website should be considered as legal advice. Probate Direct is not a law firm and can only provide self-help services at your specific direction. Probate Direct is a registered legal document assistant, #295, Los Angeles County (exp. 2-10-2015).
