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Probate FAQs2020-12-10T01:03:06-08:00

California Probate Attorney

At Moschetti Law Group, our experienced probate attorneys often get asked questions regarding the probate process. Here are the answers to some of the frequently asked questions (FAQs) about probate.

What is Probate?2020-11-25T23:18:04-08:00

Probate is the legal process for distributing a person’s estate after they pass away. Probate courts determine the validity of the will and appoint an executor or administrator to manage the collection of assets and payment of taxes and debts before distributing the remaining estate to the decedent’s heirs.

Is Probate Necessary?2020-11-25T23:29:10-08:00

Probate is not always necessary. Whether a state must be probated depends on the following factors:

  • The estate’s value (those valued at less than $100,000 will not need to be probated)
  • The type of assets (see Probate Overview: Which Assets are Subject to Probate?)
  • Whether all assets will be transferred directly to a surviving spouse

In some cases, even if probate is not required for an estate, it may be beneficial to undergo the formal process. Contact Moschetti Law Group to discuss your estate situation and whether probate will be necessary for you.

How Long Does the Probate Process Take?2020-11-25T23:29:42-08:00

The duration of the probate process will vary depending on the type of proceeding, the size of the estate and the outstanding liabilities to be addressed. Most probates in California take 6-12 months. The shortest proceedings, like “summary” proceedings in which all assets transfer to a surviving spouse, can be handled in as little as one month.

However, in cases where creditors must be notified of the death, they have four months to submit their claims. If there is any objection at this stage or later stages of the sale of assets or distribution to heirs, the process can take much longer.

Who Become the Executor or Administrator of the Estate?2020-11-25T23:30:23-08:00

Many times, the decedent will name an executor in his or her will. That person has the opportunity to decline the role, but most will accept. If no executor was named, the court will appoint an administrator for the estate. In California, the appointment will go to one of a list of relatives, prioritized by relationship to the deceased. It is also possible for multiple people to share the role of administrator of the estate.

What if the Deceased Didn’t Leave a Will?2020-11-25T23:30:45-08:00

California laws of intestate succession detail who should receive the property of a person who dies without a will (an “intestate”). The assets of the estate will be distributed to heirs in order of their relationship to the deceased. The line of rights to inheritance proceeds from the surviving spouse to children, other descendants, then to brothers and sisters, etc.

If there was no will to name an executor, the court will appoint one of the decedent’s close relatives. If a particular person wants to take on the role of executor, they can petition the court for Letters of Administration.

What Should I do First After the Death?2020-11-26T00:17:00-08:00

If you have the deceased’s will, you must provide the will to the probate court within 30 days of the date of death. You must also send a copy of the will to the named executor or one of the beneficiaries listed in the will.

After the court has been petitioned, all heirs and beneficiaries of the decedent’s will should be notified of the date, time, and location of the scheduled probate hearing.

Should I Hire a Probate Attorney?2020-11-26T00:17:49-08:00

Probate is a lengthy and involved legal process. An experienced probate attorney can provide guidance and peace of mind at every step. In the event of an objection, dispute, or lawsuit during probate, an attorney will be your advocate, representing your interests. If you would like to discuss how Moschetti Law Group can assist you with the probate process, call us to schedule a no-obligation introductory phone call.

How Much Does Probate Cost?2020-11-26T00:18:47-08:00

There are a few different costs involved in the probate process to keep in mind. They generally fall into the following categories:

1. Executor Fees

Under California law, executors may collect a fee based on a percent of the value of the decedent’s estate. Those fees may be up to 4% of the first 100,000 of the estate, 3% of the $100,000, 2% of the following $800,000, 1% of the next $9,000,000, and .5% for the next $15,000,000.

2. Attorney’s Fees

You may choose to hire an attorney to guide you through the probate process. Their fees are limited according to the California Probate Code, which outlines a maximum fee for ordinary probate services. Attorneys may also charge for “extraordinary services,” which might include managing the sale of an asset in the estate or preparing federal estate tax returns.

3. Filing Fees

The cost to file the initial probate petition in California is $435. It will cost another $435 to file the petition to distribute the estate’s assets after completing the probate process.

4. Publication Fee (for the notice of petition to administer the estate)

The publication fee will vary based on the publication used to publish the notice. Most publications charge somewhere in the ballpark of $250.

5. Probate Referee Fee

The probate referee, who assesses the value of non-cash assets in the estate, receives $1 for every $1,000 valued regardless of any liens on the assets.

Are All Assets Subject to Probate?2020-11-26T00:20:16-08:00

No, not all assets are subject to probate. The following assets may transfer directly to an heir:

  • Assets that are part of a living trust.
  • Assets with a listed beneficiary, such as an IRA or life insurance.
  • Assets the deceased held as a trustee for their beneficiary.
  • Assets listed as “payable on death” (P.O.D.) or “transfer on death” (T.O.D.).
  • Assets owned in joint tenancy with someone else.
  • Assets listed as “community property with right of survivorship.”
  • Assets owned solely but transferring to the surviving spouse.

 

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