WHAT IS PROBATE?

          Probate is the official proving of a will.  It also covers cases in which there is no will.  The process encompasses the administration of a decedent’s estate under court supervision. 

          The basic function of probate is to supply a missing link in an asset’s chain of title.  If a decedent owned his home in his name alone, the probate court will issue an order that determines to whom that property passes under the decedent’s will or the law of intestacy.  (The law of intestacy is the Legislature’s default estate plan for decedents who leave no valid last will and testament.)  That order has the same effect as a deed signed by the decedent.

          Probate is expensive.  In addition to filing fees and newspaper publication charges, all probated property is valued by a California Probate Referee whose statutory fee is 1/10 of one percent of its value.  The estate attorney and the personal representative of the estate (usually called an Executor in cases where there is a will and an Administrator where there is no will) are entitled to statutorily-capped percentage fees based on the gross value of the property probated.  Those fees are 4% of the first $100,000, 3% of the second $100,000, 2% of the next $800,000, with declining percentages on higher amounts. There can also be charges for the Executor’s or the Administrator’s bond, the purpose of which is to protect the estate against loss if the assets disappear or are stolen.

          Probate requires effort.  The Executor or the Administrator must comply with all legal requirements.  He or she must marshal and safeguard the estate’s assets, notify all reasonably ascertainable creditors, beneficiaries and heirs, account for all assets received, obtain approval for all of his or her acts, and distribute the estate exactly as directed by the court.

          Probate is time-consuming.  The process can take as little as five months, but it usually drags on for a year or more.  Most creditors have four months after they are notified in which to file claims for payment. Creditor claims, wills and all other papers filed in court can be viewed by any member of the public.

          Probate can be avoided if the decedent subjects his property to a trust, places it in joint tenancy with one or more other owners, or directs its distribution with a valid beneficiary designation.  Spouses can pursue abbreviated methods of clearing title to a decedent’s property, as can claimants to estates in which the date-of-death values of all countable assets aggregate $100,000.00 or less.

 

 

 

 

 

 

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