Probate is a division of the Superior Court of the State of California. The Probate court has jurisdiction over what are deemed “legally incompetent parties”, generally that includes deceased, disabled, and incapacitated persons. The responsibility of the Probate court is to protect these individuals and their assets.
With regard to disabled and incapacitated persons, Conservatorships and Guardianships are the main tools of the court. Conservators and Guardians take care of the person physically and can manage their assets as well if necessary. They are supervised very carefully by the court to prevent fraud and abuse. The problems with Conservatorships and Guardianships are that they are so heavily regulated that it can be difficult and time consuming to manage and can get very expensive as well.
With regard to deceased persons, probate is the court-supervised process of administering their estate. When you die, your assets are distributed and your debts paid according to your will if you have one or else according to state laws of intestate succession. Since your signature is normally required to transfer assets in your name to a third party and being deceased you are no longer able to sign over your assets, the court then steps in and supervises the transfer of the assets and payment of the debts. The court grants the legal authority necessary to administer your estate to your executor if you have a will, or if you don’t have a will, the court will appoint an administrator for you, such as a family member or private fiduciary.
How Long Does a Probate Proceeding Take to Complete?
As a general rule, in San Diego and most of Southern California, Probate can take anywhere from eight months to two years to complete depending upon the complexity of the case. During this period, the assets are subject to court supervision. In the event that family members need money to survive, they must request it of the court which takes time and can be denied. San Diego Probate Lawyer Steve Bliss works diligently to get your case through the court system as quickly as possible to minimize the adverse impact on family members.
How Much Does a Probate Proceeding cost?
Probate fees are based upon a sliding scale according to the gross value of the probate estate. It starts out as 4% of the first $100,000.00, 3% of the next $100,000.00 and 2% of the next $800,000.00. The attorney and executor each get a probate fee for example on a $500,000.00 estate, the total probate fee for services would be $13,000.00 for the attorney and $13,000.00 for the executor. Court costs and appraisal fees are additional and can easily run upwards of several thousand dollars.
Is Probate a Public Proceeding?
Yes. Your will and the entire court file is open to public review at the courthouse. As part of the proceeding, you file an inventory and an accounting of the estate. This itemizes the assets, liabilities, income and expenses of the probate estate. Hence, your entire financial life is open to review for anyone who wishes to look. In addition, the names and addresses of your relatives or beneficiaries are listed so that unscrupulous business people and con artists can contact them to try to swindle them.
Do I avoid Probate if I have a will?
No you do not. A will is merely a writing signed by a deceased person. In order to get assets transferred out of a deceased person’s name, you will need a court order, hence this is why you go through the probate process. All wills go to probate unless the total fair market value of assets that need to be probated is less than $150,000.00 gross value with no deduction for mortgages or other debts used in calculating that number. The general rule in California is that if you own a home, you are probably going to probate as most homes are worth at least $150,000.00. If you have a small estate of less than $150,000.00, then a small estate affidavit is usually all that is required.
What happens if I don’t have a will?
Your estate will pass to your heirs under the laws of Intestate Succession via a full probate proceeding. Your spouse will receive all the community property and either half or a third of the separate property depending upon how many children you have. If there is no spouse, then the children receive the entire estate once they reach age 18. If there are no children, then the law will then look for the next closest relative to receive the estate.
How do I avoid Probate?
The way to avoid probate is to get a full estate plan in place with a Revocable Living Trust being the centerpiece of that estate plan. For more information on how to accomplish that, please go to the Estate Planning home page.