Estate Administration
When is probate administration necessary?
A probate administration is generally necessary when:
- Decedent’s gross value of estate is greater than $150,000;
- Title to property is held in the decedent’s name alone or as tenant-in-common;
- Decedent was a resident of California;
- Decedent owned property in California;
- Decedent did not create a will; or
- Under many circumstances, even when a decedent did create a will.
When is probate administration necessary?
The creation of a will on its own does not necessarily mean probate can be avoided. In fact, a person’s will is used to assist probate courts in settling the estate’s affairs. Part of the probate court’s job is to verify the legitimacy of the will in order to effectuate the wishes of the decedent. The will becomes a roadmap for the court to follow while supervising the administration the estate.
How can I avoid probate?
Some property can be transferred without a formal probate proceeding. This depends on the type of assets the decedent owned at the time of death and the nature and size of the decedent's estate. Certain assets, for instance, may not be subject to probate.
A probate administration is generally NOT necessary when:
- The estate is “small” and valued under $150,000 (Small Estate Affidavit);
- Property is passing directly to a surviving spouse (Spousal Property Petition);
- Property is held in a living trust;
- Property held in joint tenancy;
- Accounts with pay on death beneficiaries, including IRAs, life insurance, pension funds, and brokerage accounts; and
- Vehicles owned by the decedent
How long does a California probate proceeding take?
A "full" probate proceeding is usually completed within six months to one year. A probate is opened by filing a petition with the court and ends with a distribution to heirs or beneficiaries. This process can be delayed if there are creditors’ claims filed against the estate, litigation, or disputes among parties. If a special need exists, the probate court may grant a preliminary distribution or access to estate funds.
If the estate qualifies as a “summary” probate, the time for the proceeding will be shortened. It could take as few as thirty days to complete a summary probate. However, not every estate is eligible for this type of administration. Please contact us to determine which type of administration your estate will require.
What are the attorney fees and costs related to probating an estate?
Attorney Fees: Most attorneys charge a statutory fee based on the gross value of the estate. These fees are paid from the decedent's estate at the conclusion of the probate process and must be approved by the court. In other words, an attorney will not usually get paid upfront and must wait until the end of the probate proceeding.
Costs: The estate or personal representative of the estate pays for expenses related to court filing fees, newspaper publication, appraisals, and costs to obtain a bond. These expenses can vary depending on the nature of the estate, but usually range from $1,200 to $3,000.
How can I get money out of the decedent's bank account?
Joint account holders have immediate access. Pay on death beneficiaries usually have to wait forty days and then go to the bank with a certified death certificate. All others must complete and sign an affidavit stating that no probate has been filed in any court, the value of the decedent's estate is under a $150,000, and no other person or persons has a superior right to the funds. The bank usually has its own form you must complete.
What is a personal representative?
A personal representative is the person who is appointed to manage the probate process for an estate. An executor is a person who is named in the decedent’s will and usually represents the estate during the probate proceeding (unless he or she refuses to act). An administrator is a person who is appointed by the probate court when the decedent dies without a will. Administrators are usually nominated by other family members and are selected by an order of priority. Sometimes there can be more than one administrator appointed.
Does a personal representatives get paid to manage the estate’s probate?
Yes. Personal representatives are reimbursed for all out-of-pocket costs they incur from managing the estate’s probate. Additionally, personal representatives may be entitled to statutory fees for handling the matter.
Can personal representative be personally liable for making mistakes?
Yes. A personal representative can be personally liable for making mistakes during an estate administration. Executors and administrators must fulfill their fiduciary duties on behalf of the estate with the highest degree of integrity. As a result, they can be held personally liable for breaching those duties through mismanagement. Please contact us to learn more about your duties as a personal representative.
What happens if a person dies without a will or trust?
In California, a person who dies without a will or a trust is said to have died “intestate.” The decedent’s estate is usually probated and is distributed according to the laws of intestate succession. The estate assets will pass to the decedent’s closest relatives using a method predetermined by law.
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