probate process

Attorney’s Step-By-Step Guide to Probate Process in California

What is the probate process in California?

The probate process in California is similar to the process in other states. If the person had a will, an Executor files with the probate court. If there is no will, the court will appoint an administrator to perform the functions the executor would have performed.

  1. If there is a will, the probate court decides if it is valid.
  2. The legal heirs or beneficiaries are identified.
  3. The assets that belong to the estate are identified.
  4. Creditors of the estate are identified.
  5. The value of the assets is determined.
  6. An inventory of the estate is submitted to the probate court.
  7. It is a good idea to advise the heirs or beneficiaries of the fees that will be paid to the executor or administrator for their efforts to handle the estate.
  8. Assets may need to be sold (converted to cash) to pay the debts of the estate.
  9. The executor or administrator may wish to have their attorney draft a release of liability for heirs or beneficiaries to sign prior to distribution of the estate assets.
  10. Any remaining assets are transferred according to the will or intestate laws.
  11. If the beneficiaries agree, assets may be transferred in kind which means the property and not the proceeds from the sale of the property is transferred.

What California probate law code covers probate law?

The California Probate Code §9050 – §9054 sets forth probate law in California. Under common law, previous court cases also influence the handling of estates in California, including disputes.

How much does probate cost in California?

The cost of probate in California varies depending on the size of the estate. California probate fees are determined by statute unless the estate is valued at greater than $25 million.

  • 4% of the first $100,000 (up to $4,000)
  • 3% of the next $100,000 (up to $7,000 for estates valued up to $200,000)
  • 2% of the next $800,000 (up to $23,000 for estates valued up to $1 million)
  • 1% of the next $9 million (up to $113,000 for estates valued up to $10 million)
  • ½% of the next $15 million (up to $188,000 for estates valued up to $25 million)

The California probate court determines the probate fees on the amount over $25 million.

It is important to note that probate fees are not the same as inheritance taxes. There are also probate filing fees.

Which court handles probate in California?

The Probate Department of the Superior Court in the county where the decedent lived at the time of death handles probate in California. At a minimum, expect probate to take nine months. Realistically, an average estate takes closer to 18 months. Complicated estates and contested wills can take years to settle. It is also important to decide whether you need a will or a living trust.

What happens if a California resident dies without a will (intestate)?

When a California resident dies without a will, their assets will go to their closest relatives under state intestate succession laws.

Under California probate law, no will means the distribution of your estate will not take your wishes into consideration. If you cannot answer the following question in the affirmative, dying intestate means your estate will be settled in a way that is different from your wishes.

If I am married at the time of my death, I want my parents, siblings, or children to inherit some of my assets.

If I am unmarried at the time of my death, I want my parents to inherit all my assets?

I am a man who does not want to leave anything for any child I have not taken legal steps to recognize as my heir who was born out of wedlock.

I am an unmarried orphan with no children and want my siblings to inherit my estate equally.

I want the court to treat my pets as property and do not want to make any special provisions for their care after my death.

If I am unmarried at the time of my death, I want my children to inherit if I have any, my parents to inherit if living, and my siblings to inherit if I have no legal children or living parents.

The distribution of your estate depends on your status at the time of death. The cost of probate may be higher if you die intestate.

 

Is probate required without a will?

Yes. Everyone has a will that determines the distribution of their estate. When the decedent did not write a will or does not have a valid will, California intestate laws stand in as their will and spell out the rules for who inherits.

What is unique about the California probate process?

One aspect of the probate process in California that is different from most other states is the separation of community property from other assets. California is one of just a handful of community property states. When the estate is probated, community property goes to the spouse. Property that is not community property (separate property) will be shared between the spouse and, depending on which relatives exist or are living, the decedent’s children, parents, and siblings.

As long as the spouse is alive at the time of death, community property will be left to the spouse if the decedent dies intestate.

Do all assets go through probate?

No, some assets can transfer without probate.

  • If real estate or bank accounts are held in joint tenancy, they transfer to the joint tenant outside of probate.
  • If the decedent had a trust, assets owned by the trust do not go through probate.
  • Assets with a named beneficiary such as life insurance and retirement accounts do not go through probate.
  • Community property may also be exempt from probate. It is best to discuss this with a knowledgeable estate and probate attorney in Los Angeles.
  • Small estates, which currently includes estates valued at $166,250 or less, can petition to determine succession to real property and avoid probate.

Not only is administering an estate complicated with deadlines that must be met, it is also often an emotional experience for the executor or administrator and the heirs. Hiring an attorney to assist with the estate can make the process easier.