Probate is the process an estate must go through in order to transfer property to beneficiaries when a person dies with a will, or without a will. If the person dies without a will, then the person dies intestate.
In many cases you will need a lawyer in order to navigate the complex court process. The Probate Code limits the amount of money an attorney can collect, as your attorney I will not charge you the maximum allowable amount.
As your Alameda County probate attorney, my goal is not to get as much money from the estate. My goal is to navigate you and your family through the probate court process swiftly and painlessly. For any other questions you might have please feel free to scroll down below for answers to frequently asked questions about probate.
Frequently Asked Questions about probate:
What is probate?
Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the “decedent”) to his or her beneficiaries.
Usually, you have to fill out court forms and appear in court to:
- Prove to the Court that the Will is valid (this is usually routine),
- Appoint a legal representative with authority to act on behalf of the decedent,
- Identify and inventory the decedent’s property, and have that property appraised,
- Pay debts and taxes, and
- Distribute the remaining property according to the terms of the Will or to the decedent’s heirs.
If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors at may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims.
When there is property to transfer the probate process also provides for the distribution of the estate’s property to the decedent’s heirs.
No. The term “probate estate” refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person’s “non-probate estate.”
California has “simplified procedures” for transferring property for estates worth under a certain amount (from $20,000 to $100,000 depending on the circumstances and the kind of property).
There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy and life insurance and retirement benefits.<br />
No. The benefits can be paid directly to a named beneficiary. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the persons named as beneficiaries. Bank accounts that are set up as pay-on-death accounts (PODs) or “in trust for” accounts (a “Totten Trust“) with a named beneficiary also pass to the beneficiary without probate.
When all the costs are added up – these may include appraisal costs, executor’s fees, court filing fees and certified copies, costs for a type of insurance policy known as a “surety bond,” plus legal and accounting fees–probate can cost from 4% to 7% of the total estate value, sometimes more.
California law says the personal representative must complete probate within one year from the date of appointment, unless s/he files a federal estate tax. In this case, the personal representative can have 18 months to complete probate.
If probate has not been completed by that time, the personal representative must file a status report to the court to explain what still has to be done and how much time that will take.
If the personal representative does not report to the court, the beneficiaries can ask the court to order him or her to file an accounting or take other actions to close probate. The court can remove the personal representative and appoint someone else.
Sometimes there are circumstances that can make probate take longer. If there is a Will contest (a claim filed with the court that all or part of the will is not valid), or the size and complexity of the estate requires extra time, or it is hard to find beneficiaries, the process can drag out. Some probate cases take years to resolve.
In California, probate hearings are in the Probate Department of the Superior Court in the county where the decedent lived at the time of his or her death.
If there is a Will, the person named as executor will usually be appointed as the personal representative – this means s/he is responsible for managing the estate and following probate rules and procedures.
The executor has no authority to act as personal representative until s/he is appointed by the court and formal “Letters Testamentary” are issued by the Court Clerk.
If there is no Will, or if the Will doesn’t name an executor, or the person named as executor in the Will is unable to be executor or does not want to be executor, the probate court appoints someone called an administrator to handle the process. The Court usually chooses the closest living relative, or a person who will inherit some portion of the decedent’s assets.
Do I need an Alameda County probate lawyer?
YES. It is a good idea to hire a lawyer as soon as possible. Do not allow your deceased loved ones assets to sit dormant too long during the probate process.
A lawyer can help avoid disagreements among family members over minor or major issues. But the lawyer represents the interests of the personal representative, not the beneficiaries.
What are the steps in the process to probate a decedent’s estate?
Most cases follow these steps:
|Step 1||In most cases, the person requesting appointment as personal representative (executor or administrator) hires an experienced probate lawyer to prepare and file a Petition for Probate. In some cases, the person requesting appointment will handle the probate without hiring a lawyer, as discussed above.|
|Step 2||The probate lawyer, or the petitioner without a lawyer, arranges to mail notice to everyone named in the decedent’s Will (when there is a Will) and all his/her legal heirs about the death and the probate hearing.The notice must also be published in the newspaper where the decedent lived to let creditors know about the hearing.Notice gives everyone notified an opportunity to object to admitting the Will and to the appointment of the personal representative.|
|Step 3||The hearing usually takes place several weeks after the matter is filed. The purpose of the hearing is to determine the validity of the Will and to appoint the personal representative.Sometimes, the Court will need the people who witnessed the decedent’s signature on the Will to sign a declaration.If there are no objections, the court will approve the petition and appoint the personal representative.|
|Step 4||The personal representative must identify, take possession of, and manage the probate assets until all debts have been paid and tax returns filed. This process usually takes about a year.Depending on the terms of the Will (if there is a Will), and on the amount of the decedent’s debts, the personal representative may have to sell real estate, securities or other property.For example, if the Will makes cash gifts but the estate consists mostly of valuable artwork, the art may have to be appraised and sold to produce cash.
Or, if there are unpaid debts, the personal representative may have to sell some of the estate property to pay them.
|Step 5||After paying the debts and taxes, the personal representative must file a report with the court. The report accounts for all income received and payments made on behalf of the estate.The judge will then authorize the personal representative to divide the remaining property among the people or organizations named in the Will.|
|Step 6||The property will be transferred to its new owners.|