California Probate FAQ

What is probate?

When a person passes away, their estate is be distributed according to the terms of their will or by state law if no will is present. This is accomplished through a process known as probate. Probate courts deal with the processes of ensuring the validity and of a decedent's will, cataloging and appraising assets, satisfying any outstanding debts, and distributing property to the designated beneficiaries.

Is probate necessary if I have a small estate?

In the state of California, probate is generally not needed when distributing estates valued less than $100,000. With that being said, estates with real property valued at $30,000 or more usually need to be probated. If you are unsure whether or not probate will be needed to distribute your estate, an attorney can answer your questions and help you evaluate your situation.

Why should I hire a probate lawyer?

Probate is a notoriously complex legal process and has a large margin for error, especially when dealing with high-net-worth estates. A skilled Los Angeles probate attorney can guide you step-by-step through the process and handle any disputes that should arise. Should a dispute escalate to a point where probate litigation is necessary, an attorney can protect your interests and advocate for a favorable resolution on your behalf.

How long does probate usually take in Los Angeles?

Under normal circumstances where no issues arise, probate can take around 8 months from start to finish. This includes a 4-month claim period where creditors are given the opportunity to file claims against the estate for outstanding debts. If a dispute should arise or if courtrooms become overcrowded with cases, this process can take longer.

Who is notified when probate begins?

Under California law, all heirs, beneficiaries, and executors named in a decedent's will shall be informed that probate is to begin. This notice will include the date, time, and location of the case's hearing.

How much does probate cost?

California has set forth certain guidelines for attorney and executor fees in regards to probate, though the courts may order higher fees for particularly complex cases. Maximum fees permitted are 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 .5% for the next $15,000,000. Fees for any amounts worth more than $25,000,000 are determined by the courts on a case-by-case basis.

What steps need to be taken when the case belongs in probate court?

The individual who has the will at the time of the person's death MUST take the original will to the probate court clerk's office within 30 days. The custodian of the will must send a copy of the will to the executor. If the executor cannot be found, then the will must be sent to one of the named beneficiaries in the will. If the custodian fails to do these above steps, he or she can be sued for any damages caused.

What happens when someone dies without a will?

If the decedent died without a will but a court case is needed, the court shall appoint an administrator to manage the estate during the probate process. If a person wishes to act as the administrator, he or she must file a Petition for Letters of Administration (Form DE-111)

When there is no will, who serves as the administrator?

The administrator is usually the decedent's spouse, domestic partner, son or daughter, or close relative such as a parent or sibling.

Do all estates require probate?

No, not all estates have to be probated. You may or may not need to go to probate court to transfer title of the property of the deceased. Determining if an estate will require probate depends on many issues such as the amount of money involved, the type of property involved, and who is claiming the property.

Do all assets pass through probate?

Not all assets pass through probate. Essentially, those assets that pass through a will are probated. Those assets that don't pass through probate include assets held in a trust, life insurance policies with beneficiary designations, payable on death bank accounts, transfer on death securities, retirement accounts, and real estate held jointly with right of survivorship. Since all of these assets pass automatically to the beneficiary, probate is not necessary.

What is a will?

A will essentially relegates an individual's property, resources, belongings, land, finances and the like to others when the person who made the will passes away. There are some stipulations that are involved in the process of constructing a will that an individual needs to be aware of.

Is there an age limit of when I can get a will?

Yes, there is an age limit. Under California law, in the probate code §6220, a person must be coherent in thinking, as well as older than 18. Any party that is younger than 18 cannot have a will made.

What of my belongings won't experience probate?

According to California probate code, §6240(5), belongings which are not the individual's sole property can be given to a party without probate . Belongings and resources including shared bank accounts between two individuals, or a legal document of ownership for the individual's place of residency that has the names of other individuals or family members on it will go to that individual.

The individual who was chosen as recipient will receive the advantages of the person's pension program as well as the insurance coverage program, which allots that when an individual passes away some amount of finances will go to the chosen recipient or heir from the insurance company. Essentially if an individual's resources and belongings do not solely belong to them, they will most likely not be involved in probate proceedings, but if an individual's belongings are solely theirs, they can be a part of the probate proceedings.

Does divorce affect a will?

Yes, a divorce will affect an individual's will. California probate code §6227(a) notes the effects. When an individual divorces, that which was to be relegated to the other spouse if they die, as presented in their will, is no longer valid. It will also take away the selection or suggestion to give the divorced individual responsibility to take care of the other spouse 's will, estate, children and other individuals that may require assistance and care, finances, belongings, property and the like. These revocations are reinstated if the couple weds again.

What is an attorney-in-fact?

Attorney-in-fact is associated with the power of attorney, in fact it is a specific facet of power of attorney. To gain more understanding about what an attorney-in-fact is, a definition is given below.   
Essentially, an attorney-in-fact, as defined by §4014, is when a party that carries out power of attorney allows an individual to carry out and execute things for them - there must be permission given. This particular term can also refer to the next as well as substitute individual, also known as the "attorney-in-fact," that makes decisions and does things for the individual who carries out power of attorney, as well as individuals that the attorney-in-fact assigned or gave power to.

If you want more information on probate law, or have more questions, don't hesitate to call the Law Offices of David Shapiro as soon as you can at (310) 853-1554. Also feel free to complete the contact form to receive more information on what our firm can do for you legally.