Why Would You Probate A Will

In Irvine California, probate isn’t a particularly onerous process, and there are several legal shortcuts that let many families avoid probate court altogether after a loved one dies. But probate in California can have one big drawback: extremely high attorney fees.

Probate isn’t always necessary. If the deceased person owned assets in joint tenancy with someone else, or as survivorship community property with his or her spouse, or in a living trust, those assets won’t need to go through probate. The same is true for assets held in a revocable living trust and accounts for which a payable-on-death beneficiary has been named.

Does a will always have to be probated? Not necessarily. Probate is the legal process a will goes through if it needs to be validated. Several circumstances might make probate unnecessary, but the rules can vary by state. Many states make other options available, and some exceptions are universal.

Learn the differences between property subject to probate and property that isn’t, and learn some circumstances might require a will to go through probate.

Probate and Property Held in Joint Names

People often own assets in joint names with their spouses, their children, or others. If an asset is held jointly with “rights of survivorship,” it passes automatically, by operation of law, to the surviving owner or owners.

This means that probate isn’t required. The decedent doesn’t have a legal right to include their ownership interest in the property in a will or bequeath it to anyone other than their co-owner. If such a provision were included in a last will and testament, the court would not uphold it.

Probate and Property With Named Beneficiaries

Other assets are “payable on death” to one or more designated beneficiaries and avoid probate for much the same reason. They pass automatically by operation of law to the named beneficiaries. The accounts or proceeds go directly to these individuals.

Many people buy life insurance policies to provide income replacement and a source for paying off their debts when they die. Because these death benefits pass automatically and directly to their beneficiaries under the terms of the policy contract, they don’t become part of the deceased’s probate estate. Therefore, they cannot transfer them to other beneficiaries according to the terms of a will.

Many people invest in retirement accounts, such as 401(k)s, IRAs, and annuities to plan for their retirement. If the account owner died before using up the entire account for their retirement needs, the account would pass automatically by operation of law to its designated beneficiaries.

Assets inherited by the surviving spouse or registered domestic partner can also be transferred with a streamlined procedure, using a document called a Spousal (or Domestic Partner) Property Petition. The probate court is involved, but the process is simple and quick. There is no limit on the value of property that can be

Other assets may not need to go through probate, either. If the total value of the probate estate (the assets that can’t be transferred to inheritors in one of those other ways) is small enough, probate won’t be necessary. Currently, the cap is $150,000. Inheritors can claim the assets with a simple sworn statement (affidavit) or can go through a streamlined summary probate process. Cal. Probate Code ß 13100.

Probate and Revocable Living Trusts

If the decedent formed a revocable living trust and funded their assets into the trust, there would be no probate because living trusts are designed to avoid it. They allow a mechanism for assets to pass to beneficiaries under the trust agreement’s terms, so probate is not required.
However, some people form trusts and create a will designed to catch any assets the trust maker neglects to place into their trust for one reason or another. This is called a “pour-over” will.

The will is used to transfer any non-designated assets to the trust at the time of the trust maker’s death.

Probate and Small Estates

Probate is required to transfer property out of a deceased individual’s name and into the name of a living beneficiary when the asset is not set up to transfer directly by operation of law. There is an exception to this rule that can keep some estates out of probate.
Nearly every state offers a form of abbreviated probate proceeding for small estates valued under a specified amount. Beneficiaries can sometimes claim the deceased’s property with an affidavit approved by the court. A surviving spouse or child might take the affidavit to a bank or other financial institution and take ownership of the property under the affidavit’s terms.

The Basic Probate Process

If probate is necessary, someone must come forward to start the process. If there’s a will, the executor named in the will should get the ball rolling. If there’s no will, or the person named to serve as executor isn’t available, then usually a family member asks the court to be appointed as the administrator of the estate. It’s the same job.

The executor’s job will probably last six months to a year. First, the executor files the will, along with a document called Petition for Probate,î with the probate court in the county where the deceased person lived. There is a filing fee of about $435; some counties charge a bit more. Some other forms may need to be filed as well, and formal notices need to be given to beneficiaries, particular family members and creditors. The will, if there is one, must be shown to be valid; usually this is done by having the witnesses sign a sworn statement that’s submitted to the court. When everything is in order, the court issues Letters Testamentary or Letters of Administration,î appointing an executor and granting that person authority over estate assets.

Once the executor has this authority, the process of gathering the deceased persons assets can begin. It’s also the time for the executor to get organized, set up a filing system so that benefits and bills aren’t overlooked, apply for a taxpayer ID number for the estate, and open an estate bank account. The executor will need to compile, and file with the court, an inventory and appraisal of all probate property.

If all this sounds overwhelming, remember that it doesn’t all have to be done at once. It does involve a lot of paperwork (and usually, phone calls), but most well-organized and conscientious people can handle it. And the executor can always get help, from family members or from an attorney who understands the process and can serve as a guide.

Most probate cases in California are handled under the state’s Independent Administration of Estates Act, which lets the executor take care of most matters without having to get permission from the probate court. ( and following.) The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. Certain other acts for example, selling real estate require court approval. Cal. Probate Code ß 7261.

During the probate process, it’s the executor’s job to keep all assets safe. For example, a house must be insured and maintained; heirlooms must be safeguarded from theft or damage. The executor is also responsible for filing tax returns for the deceased person and for the estate.

In California, creditors have four months to come forward with their claims. Many estates don’t receive any formal claims from creditors; instead, the executor simply pays outstanding bills (for expenses of the final illness, for example). If there isn’t enough money to pay all valid claims, however, state law sets out the order in which claims are to be paid from estate assets. California Probate Code ß 9050 and following.

Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That’s when the executor can distribute all the estate assets to the people who inherit them.

Probate Attorney Fees in Irvine California:

In most states, lawyers charge by the hour or collect a flat fee for probate work. Not so in California. It’s one of only a few states that let lawyers charge a statutory fee an amount that is a percentage of the value of the assets that go through probate. The percentages are set out in state statutes. (Cal. Probate Code ß 10810, 10811.)

Here are the current rates:

4% of the first $100,000 of the gross value of the probate estate
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
.5% of the next $15 million

A reasonable amount (determined by the court) for any amounts higher than $25 million

In practice, this means that probate lawyers fees can be very high in relation to the amount of actual work done. Probate is usually a matter of filing papers; there’s no trial and there may be no court appearances at all. So, let’s say your probate estate contains a $600,000 house you own in your name alone, plus some bank and brokerage accounts and a car.

The total value is $900,000.
The attorney is statutory fee would be $21,000.
But wait, what if there is still $200,000 to pay on the mortgage, reducing your equity to $400,000?
The attorney is fee would still be $21,000óitís based on the gross amount of the probate assets, not what you actually own.
Roseville California lawyers don’t have to charge this way they can bill by the hour or charge a flat fee.
They do it because the statutory fees are such a good deal for them. And the fees are only for ordinary work if there is something extraordinary, the lawyer can ask for a bigger fee.

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Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted, and a written agreement containing all terms of representation has been signed.