Probate

What is Probate?

Probate is a court case with judicial proceedings involving a judge. It's primary purposes are to prove the validity of an existing will, appoint an executor or administrator, ensure the creditors of the deceased are properly noticed and paid, and distribute the assets of the estate according to the terms of the will. 

Probate Threshhold

For deaths occurring on or after April 1, 2022, probate is not required where the personal property value is less than $184,500. In such a case it is possible for a beneficiary to submit a sworn statement known as an Affidavit for Collection of Personal Property.

If the estate involves real property valued below $61,500 for deaths occurring on or after April 1, 2022, an Affidavit re: Real Property of Smalle Value (DE-305) can be filed with the probate court.

How long does Probate take?

California probate proceedings can often take a couple years or longer depending upon many factors. For example, a multitude of beneficiaries can slow the process down as each benificiary needs to be notified and submit domumentation to the executor or attorney of the estate. Estates with unusual assets that are difficul or time-consuming to value will delay the process. Real estate holdings in multiple states will also slow down the process and may require ancillary probates. Disputes among beneficiaries will also delay proceedings, as well as compliance requirements with the IRS as to estates subjec to Form 706. Choosing a bad executor or discovering multiple wills will also delay probate.

How much does Probate cost?

• Court related fees can be found at the Superior Court of California Statewide Civil Fee Schedule under the heading "Probate Fees."
• Attorney fees are set by statute. For the first $100,000, the fee is 4% ($4,000), then 3% of the next $100,000 ($3,000), then 2% of the next $800,000, then 1% of the next $9 Million.
• The Executor is allowed the same statutory fee as the attorney.

Example: A $500,000 estate would result in statutory attorney fees of $13,000 plus executor fees of $13,000, or $26,000 plus court fees. An executor may waive or reduce his/her fees. 

Note that only the assets subject to probate are subject to these fees. Assets that are not subject to probate do not incur these fees.

Avoiding Probate

You can avoid probate by setting up a Living Trust and properly designating beneficiaries on life insurance and annuities, creating payable-on-death accounts or transfer-on-death accounts, properly designating joint tenancy or community property with right of survivorship on real estate, or transfer-on-death deeds, spousal property or domestic partner petition, among other things.

But if you die without a probate-avoiding plan in place, or fail to properly fund your trust, your loved ones can look forward to long and expensive probate process that often lasts a year or longer.

Probate is Public Record

In addition to being an expensive and drawn out process, probate proceedings are a matter of public record, meaning anyone can see what's going on in the case. You may not want the general public knowing about who inherits what in your family matters.