We guide you Through Probate with Care and Confidence

Probate can be an emotionally taxing and complicated process. Numerous, complex laws govern the probate process in California. Tresp Law, APC, will guide you through the probate process with care, compassion, and confidence. With Elizabeth’s guidance, you will avoid the pitfalls that can lead to significant and costly errors.

THE PROBATE PROCESS

When a California property owner dies, most assets not held in Trust must be administered and distributed under court supervision as governed by the decedent's Last Will and Testament. If there is no will, State law governs the administration and distribution. Unfortunately, this process causes delays and can eat up a large portion of the estate.

If at all possible, probate should be avoided. The probate process will take at least one year to eighteen months and can take up to several years. There are many different approaches under California probate law that can allow someone to avoid probate. For example, if a trust is in place, assets governed by the trust are administered and distributed in accordance with the trust, avoiding probate. Co-ownership and gifting during life, and beneficiary designations are some of the other ways to avoid probate, but all of these must be done prior to death.

There will be cases when probate cannot be avoided. If that is your circumstance, then the process must be started in order to transfer ownership of the decedent’s property to the beneficiaries.

OUR PROBATE SERVICES

We work with you to administer the decedent’s estate, identify and distribute assets to the beneficiaries, and provide services for other issues that may require the attention of a probate court, including Lost Wills, Will Contests, Removal of Executors, and a variety of other Probate Litigation matters.

Tresp Law, APC has extensive experience representing clients in probate cases involving assets in multiple states and international assets, including real estate, stocks, bonds, annuities, and other investment forms.

HOW DOES THE COURT MANAGE THE PROBATE PROCESS?

1. In the will, a person named as the Executor will file a petition with the Superior Court asking to be appointed as Administrator.

2. If no will exists, persons may petition to become Personal Representative in a prioritized list that is governed by the Probate Code.

3. Creditors may petition to become a Personal Representative if no one with a higher priority chooses to act.

4. If there is a will, it is filed with the petition; and notices are sent to heirs and/or relatives, informing them of the date of the hearing.

5. Unless there is a will contest or a dispute about who should serve as Personal Representative, the initial probate hearing will determine who serves in this role. If there is a dispute, competing petitions or a will contest, the initial hearing will be the first opportunity for the parties to discuss the matter with the court, and to plan the path for resolution of the outstanding issues.

6. The Personal Representative inventories the estate's assets, locates creditors, pays bills, files tax returns, and manages the estate assets.

7. Upon completion of all Personal Representative’s duties, another petition is filed with the court requesting the distribution of the estate to the beneficiaries. If the petition is granted, the assets are distributed to the beneficiaries and final tax returns are filed.

WHAT ARE THE COSTS OF PROBATE?

California probate lawyers charge statutory fees, as governed by California Probate Code §10810. This code sets the amount, but extraordinary fees can be ordered by the court in more complicated cases. Probate is generally more expensive than setting up a California Trust.

The Probate Code sets the fees that can be charged by a probate attorney as follows:

• 4% of the first $100,000 of the estate;

• 3% of the next $100,000;

• 2% of the next $800,000;

• 1% of the next $9,000,000

• and 0.5% of the next $15,000,000.

• Estates larger than $25,000,000 will be subject to a court-determined fee for the amount that is greater than $25,000,000.

A will does not protect anyone from the probate process, only a trust can do that.

HOW IS THE VALUE OF THE ESTATE DETERMINED?

The value of the estate is determined by providing the court an inventory of assets held by the decedent at the time of death. Debts are excluded when determining this value. For example, if a house in the estate is appraised at $2,000,000 but has a mortgage of $1,200,000, it will still be valued as a $2,000,000 asset for the purpose of calculating the value to the estate.

HOW IS THE ESTATE APPRAISED?

Probate referees, appointed by the State Controller, appraise estates. Probate referees determine fair market value for the assets. That fair market value includes mortgages and other debts, which can result in an appraisal of the property that is higher than the equity that the deceased owned in the property. Probate referees are paid a fee based on 0.1% of the appraised assets.

The fee charged to file a probate petition is $435.00, but may be higher in some counties. On top of the statutory fees, there are also appraisal fees, publication costs, and other miscellaneous fees. A typical estate normally incurs $1,000.00 to $3,000.00 in court costs and other mandated fees.

WHAT ARE THE ADVANTAGES OF PROBATE?

1. A judge controls the proceedings and can resolve disputes between heirs or disputes that may arise between heirs and the Personal Representative.

2. Any creditors notified of the probate are required to submit their claims against the estate within a four-month period but in some circumstances up to one year of the decedent's death. If they fail to do so, their claim will be unenforceable.

3. The Personal Representative is generally required to prepare an accounting and report of their activities.

WHAT ARE THE DISADVANTAGES OF PROBATE?

1. Higher cost. The cost of administration of a living trust for a similar estate is usually much lower.

2. Slower resolution. Moving an estate through probate will take longer than administering a trust.

If you are domiciled in the State of California or own California real estate, or if you are an heir to an estate subject to administration in California, contact Tresp Law, APC right away. We can guide you through the probate process for your loved one or enforce your rights as an heir to ensure the probate is conducted properly.