WHAT IS PROBATE? Probate is the process that courts use to determine how your estate will be distributed. Probate applies whether you have a will or not and for any estate whose gross value is over $184,500.00. It includes proving the legality of a decedent’s will; identifying and inventorying the estate property; appraising of the property; paying any debts or taxes (including estate taxes); distributing the property as directed by their will or state law if there is no will. Probate is also used to eliminate all potential claimants to your property. These claimants can be creditors and/or family members who think they have a right to your estate. The court supervises the probate process.
WHAT IS A WILL? A will is a written document that disposes of a person’s property after his or her death. It identifies who you want as the executor, who will receive your assets after your death, and the guardians of your minor children.
WHAT DOES PROBATE COST? California's probate attorney fees are set by law. These fees are based on the "gross value of estate" and do not include the cost of other services, such as sale of assets, tax preparation, bonds, court filing fees, litigation fees, Appraiser fees, Probate Referee fees, or extraordinary legal fees.
HOW LONG DOES PROBATE TAKE? It depends on the complexity of the estate. The minimum time probate can take is approximately 8 months for a simple estate with one heir and no creditors. If there are more than one heir and assets have to be sold or if there are a number of creditors, probate can last up to 2 years. If there are challenges to the will, the process can take from 2 to 10 years or longer.
WILL PRIVATE INFORMATION BE EXPOSED DURING THE PROBATE PROCESS? A Will is entered into Probate and immediately becomes public record along with all of your information as well as the information of your Executors and Heirs. Anyone can go to the courthouse and look at the file and be privy to all of that private information
HOW CAN PROBATE BE AVOIDED? There are several alternatives available to avoid the very costly and long process of probate. Naming a Beneficiary on life insurance policies, IRA’s, 401(k)’s, and annuities before your death assures the asset is transferred straight to the chosen beneficiary. Joint Tenancy is where the owner of the asset names a co-owner of an account or real property. Caution: Joint tenancies have risks as the co-owner has the same rights to the asset as the original owner and a loss of Stepped-up valuation. Pay-on-death Accounts are similar to naming a beneficiary in that the bank account owner completes banking paperwork which names the person(s) who will receive the bank account upon the bank owner’s death. Lifetime Gifts given during your life avoids probate because probate only applies to those assets owned at time of death. A Living Trust is very beneficial because you are able to pass on your assets to your spouse or children or other heirs in entirety without delay and without lawyers, administrators, courts, or referee and appraiser's costs. A complete estate plan included in the Living Trust includes many ancillary documents that protect you financially, physically and allows for peace of mind.