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Following are some frequently
asked questions and answers regarding probate:
What is Probate?
Probate is when the court supervises the process that transfers
legal title of property from the estate of a person who has died (the
"decedent") to his or her beneficiaries. It includes determining the
validity of a will (or whether there is no will), inventorying assets,
paying debts, taxes, and expenses of administration, and distributing
any remaining assets to the beneficiaries under the will or the
decedent's heirs-at-law.
How do you avoid probate?
A common way to avoid probate is through the establishment of a living
trust and the transfer to the trust, while you are alive, of
substantially all of your assets. Living trusts are governed by their
own laws and they need not end immediately at your death. Therefore, if
the trust is the titleholder to your property, there is no need to go
through probate to re-title those assets out of your name. Instead, the
successor trustee merely distributes the trust assets to the
beneficiaries that you have specified in the trust document. Similarly,
life insurance, pension plans, and retirement accounts are payable
directly to a named beneficiary, and therefore are neither governed by
the will nor require probate. Property owned jointly with survivorship
rights passes automatically to the survivor, and is not subject to the
will or probate proceedings.
Are all assets subject to probate?
No. Assets that are subject to probate include: the assets in the
decedent's name alone; one-half of each asset registered as community
property in the decedent's name with his or her spouse; the decedent's
portion or share of an asset where the asset is registered as tenants in
common with other people; and assets that are owned but are not
registered, such as furniture, jewelry, etc.
Assets that are not subject to probate include: assets
held in joint tenancy with another person or persons; assets held in a
living trust; assets such as life insurance and IRA benefits, where a
beneficiary is named; assets in a bank or savings and loan account in
the decedent's name as "trustee" for someone else; assets which can be
registered in a person's name and which are "payable on death" (POD) or
"transfer on death" (TOD) to someone; and assets passing to the
surviving spouse. If the decedent owned assets in his or her name alone,
but these assets are left by will or pass by intestate succession to the
surviving spouse, no probate is necessary, but a court proceeding or
other action may be necessary to transfer title.
Must a small estate be probated in California?
California has simplified procedures for transferring small estates
($20,000 to $100,000, depending on the type of property). If there is no
real property involved, a court proceeding may not be needed.
How long does probate take?
Probate proceedings take at least six months but often take a year or
two to complete, and if it's necessary to file federal estate tax
returns, the proceedings can last even longer. The usual time frame for
the first distribution is from six to eight months from the time of
death, although most states have provisions for spouses and minor
children to receive distributions almost immediately.
What are the costs associated with probate in
California?
There can be substantial cost involved in probating an estate. In
California, there is a statutory fee which imposes an upper limit on
executor and attorney fees for "ordinary" services, based on the value
of the gross estate. Attorneys and executors may also be paid for
"extraordinary" services, such as sales of property or litigation. Often
an executor who is a family member of the deceased agrees to serve
without a fee. The court filing fee in a probate proceeding is based on
the size of the estate, and in a large estate it can be thousands of
dollars. The assets in a probate proceeding are appraised by a
California Probate Referee, who charges a fee of 0.1% of the value of
the assets. The court also imposes various other fees, such as for
filing accounts and reports and for certified copies of documents. Other
costs include publication of notice of administration and, if required,
a surety bond.
Who is responsible for handling a probate?
Usually the executor named in the will handles the probate, with the
assistance of an attorney. If there is no will, or if the will does not
name an executor or the executor declines to act, then the court names
an administrator. The executor or administrator has no authority to act
until "Letters Testamentary" or "Letters of Administration" are issued
by the court. If no formal probate is required, then the persons
entitled to the decedent's assets usually take care of paying the
decedent's debts, filing final income tax returns, and distributing the
property to those entitled to it.
Still have questions? Take a look at the
Superior Court of California website. |
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