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What Is Probate?
Simply put, probate is a legal proceeding needed to wind up a person's legal and financial affairs after death when they did not engage in proper estate planning. In California, probate is conducted in the Superior Court of the County where the decedent lived or where the decedent owned property.
How Long Does Probate Last?
Probate usually takes anywhere from one to three years to complete and generally is very expensive. Some people erroneously believe that if they have a Last Will and Testament, they can avoid probate. The opposite is generally true though.
Having only a Will virtually guarantees that a probate will need to be opened to transfer assets to beneficiaries. In this manner, whether you have a California Will or not, your estate must pass through a probate court proceeding.
Need help with probate? Contact Kaiden Elder Law Group, PC today!
What Does A California Probate Involve?
Usually, the person who is the nominated executor in the Last Will and Testament petitions a probate court to be formally appointed. If there is no Will, intestate succession rules apply, and most of the time, a close family member is appointed administrator of the estate by a probate judge.
As the probate gets going, heirs and certain relatives, as well as creditors, are given notice about future probate proceedings. Anyone can monitor these proceedings and even contest any aspect of a probate proceeding if they oppose it.
In the easiest probates, the executor:
- Marshals the estate assets
- Locates and pays off creditors
- Files final tax returns
- Manages assets of the estate until they are ready to be distributed
After all the duties of the executor have been completed, the estate's assets are distributed to heirs, attorneys fees are paid, and the probate is finalized.
How Much Does A California Probate Cost?
Besides filing fees, bond fees, appraisal fees, executor fees, etc., people usually want to know how much is paid to a probate attorney for their legal fees.
You should know that probate fees are statutorily set by law and if an estate passes through the probate process:
- Legal fees are 4% on the first $100,000 of the estate
- 3% on the next $100,000
- 2% on the next $800,000
- 1% on amounts over $1,000,000
These are gross amounts, not net amounts (for example, a mortgage is irrelevant in figuring out probate fees). That means a gross estate with property, including a family home, bank accounts, etc., equaling $1,000,000 will incur $23,000 in legal fees. Sometimes, in more complicated probates, the court will award even larger fees to both the executor and/or the probate attorney as extraordinary fees.
Please note however, that the above is an extremely simplified explanation of the probate process and fees/costs, but it does highlight two of the main reasons people try to avoid probate: It takes a long time and is relatively expensive, especially in comparison to creating a solid estate plan with a California living trust, which will require a less onerous California trust administration.
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Is There Another Way to Avoid Probate in California?
There could be! In 2023, if an estate that would normally pass through probate totals less than $184,500, or if a transfer of real property in California is worth less than $55,425 in 2023, a small estates affidavit might be used instead of going through a long, expensive probate. There are also special proceedings available to spouses which can help avoid a formal probate. Finally, where people tried to create a Revocable Living Trust but messed it up, we sometimes can salvage that trust in probate court with a less time consuming (and less expensive) court proceeding.
If you need an experienced attorney, please call us at (661) 247-8433 for a consultation. The help of an experienced Probate Lawyer can be invaluable, especially when dealing with complicated or litigious matters.