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What Is Probate?

People often read or are told by their friends to get a living trust to make sure their estate does not have to go through probate. I am frequently asked if this advice is correct.

For most, the simple answer is, “Yes.”

However, before tackling the question, we need to understand some basics.

First, understand what “probate” is. In short, a probate is a court supervised process by which a person’s estate is administered. Keep in mind that under California law a last will and testament does not avoid the legal requirement of a probate, although a will does determine how your assets are distributed (after debts, final expenses, and administrative expenses are paid). In addition, if you have minor children a will is necessary for you to name guardians if you should pass away before they are adults.

Second, understand that probate takes time. Like everything legal, when a court is involved, there are filings, deadlines, waiting periods, responses, hearings, and maybe a trial. Probate is no different. In a very simple uncontested probate case, the time to process the case through the court could easily take a minimum of six to eight months. More often than not, however, cases have some complexity that requires some unusual consideration or resolution, or there additional time is necessary to gather required information, perhaps liquidate certain assets, or get calendared in a very congested court docket. More typically, cases take much longer.

Third, understand that probate cases are a public record. Although specific information is redacted in order to protect and keep confidential certain information, such as tax identification numbers and account numbers, the substance of the information in the court file is open for anyone to see.

Fourth, understand that the court has control over the process. The court may grant a greater degree of powers for an appointed administrator to take certain actions, but not all actions can be concluded without approval. For example, the court may grant the administrator powers to liquidate certain assets in anticipation of a distribution to estate beneficiaries, such as stocks, mutual funds or other securities, but not the liquidation of real estate, without court approval, even if directed within a will.

Fifth, understand that probate is expensive. The Probate Code sets standard legal fees and administrator’s fees totaling eight percent of the first $100,000, six percent of the next $100,000, and two percent up to the next $800,000. The fees are based on the gross value of the estate, not deducting any debts or mortgages. So, if your estate includes a home valued at $400,000, a couple of vehicles valued at $30,000, bank accounts valued at $20,000, and personal property (i.e. furniture, appliances, etc.) valued at $10,000, the total value of the estate regardless of debts is $460,000. Thus, the fees for probate would total $24,400 ($100,000 x .08 + $100,000 x .06 + $260,000 x .04). In addition, the court charges filing fees at the inception of the case and each time a motion is filed with the court for the court to approve some action by the administrator. The court will appoint a person called a probate referee to appraise property, and at least one notice will need to be published in a newspaper of general circulation. It would be advisable to add an addtional $2,000 - $3,000 in costs to the probate.

Sixth, understand that a will does not avoid probate. Under current California law, if the gross value of the estate is more than $166,250, it must be probated. Again, keep in mind this figure represents the total value of assets NOT deducting debts. So, it does not represent the actual equity in the estate. Also, in most cases, this sum does NOT include retirement accounts, life insurance, or other property passing by way of a title right (to be discussed in a separate post).

Proper planning to include a revocable living trust (among other relevant documents) can avoid the formality of probate, can avoid the court’s involvement, and can substantially reduce the time and expenses of administration.

If you have specific questions, feel free to take advantage of a free consultation by filling out our contact form or calling us.