Probate is a court process to determine a decedent’s assets and heirs. When a person passes away with a will or without a will (intestate), the assets are in the jurisdiction of the probate court. In California, probate is conducted in the Superior Court (Probate Court) for the county in which the decedent lived, and can take six months and sometimes as long as several years.
The personal representative files a petition with the Probate Court to open probate on the deceased’s estate. The personal representative is either the person who is nominated in the will as executor or, if there is no will, the person approved by the court as administrator, in order of priority according to the California Probate Code.
The personal representative’s duties are to act as a fiduciary for the estate and generally to:
- Send notices to the heirs and/or relatives to let them know when the hearing will be held. The purpose of the hearing is to resolve any issues (such as if there are objections to the petition or if the will is contested). In most cases, there is no objection and the petition is granted.
- Publish notice of hearings in newspapers.
- File an inventory of the estate’s assets.
- Locate creditors, pay bills, file tax returns, and manage the estate assets.
- Prepare an accounting and report of assets.
- File final petition asking the court to allow distribution to the heirs.
California Probate Code sets the statutory fees for personal representatives and attorneys. Higher fees can be ordered by a court for more complicated cases. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the fee.
In addition to the above, taking into account probate filing fees and probate referee fees, the fee is anywhere from 5-7% of the estate.
Probate fees are on the gross value (this means that debts are not included in calculating fees).
Probate referees appraise certain estate assets (real properties, business interest, personal valuable items). They are appointed by the State Controller to determine the fair market value of the asset.
Handling probate is not an easy thing to go through, which is why it is important to hire a lawyer experienced in probate law. We provide beneficial legal advice and we will make sure that the estate of your loved one is handled with care and sound legal strategies.
