It is a common misconception that if the decedent had a Will, no probate is required. THAT IS NOT TRUE. However, there are special conditions that are not subject to probate:

• If decedent was married:  Property going outright to surviving spouse need not go through probate.  It may be transferred by Affidavit or by Spousal Property Petition.
• Property that was held in Trust
• Property payable on death to a named beneficiary (like a child or a sibling)
• Property held in joint tenancy and at least one tenant still lives (such as unmarried couples)
• Autos, small boats and mobile homes, if properly registered

All other “untitled” assets will need to go through the probate process - yes, even if there is a Will! Be sure to examine the title and list each asset, adding the value to determine if it is subject to probate, and which type of probate is needed - Formal or informal.

For instance:

If the total sum of assets not excluded from probate is greater than $100,000: FORMAL PROBATE is required.
However, if the total value of all assets subject to probate is less than $100,000, including real estate, a simplified more informal procedure is used.

Please be aware that real estate owned outside of California most likely will be subject to PROBATE. You will need to follow the laws of the state where the property is located.

The origins of probate go back to medievil times, and here is why it became necessary. A living person can easily transfer property to a family member - let’s say a piece of real estate, by signing a document called a Deed. But a dead person obviously cannot sign a Deed for property intended to be gifted after death.

The probate process has been put in place to provide a means by which the decedent’s property can be transferred to the heirs once creditors have had the opportunity to claim money owed to them. You might say, it is the probate court who steps into the shoes of the decedent and facilitates the transfers of property in question to the rightful heirs.

Probate is a well defined court process by which the estate of the deceased is inventoried and distributed according to the state laws. Probate offers a solid legal framework and a step-by-step process to ensure control of creditor claims and equitable distribution to the rightful heirs.

Each probate requires an executor or administrator, also known as a personal representative. The person who is going to act as the executor or administrator must first file a petition with the probate court to be appointed. If there is a will, the petition must also include a request to admit the will to probate. Once formally appointed, the executor or administrator must post a bond (unless waived in the will or waived by all heirs). Once the bond is posted, the Court issues Letters Testamentary for the executor, or Letters of Administration for the administrator. These letters give notice to third parties such as banks, stock brokerage houses and title companies that the person appointed has the power to deal with the decedent’s assets.

As soon as the executor or administrator is formally appointed and is issued letters, it is his or her job, typically with the assistance of a Probate Attorney, to do the following:

1. Gather all assets of the decedent required to be probated
2. Determine all debts of the decedent
3. Inventory all probate assets
4. Appraise all probate assets
• Cash and bank accounts are appraised by the executor or administrator
• Real estate and stocks and bond are appraised by a court appraiser
5. Pay debts
6. Pay taxes
• The executor or administrator is required to file the decedent’s final income tax returns.
• If the estate exceeds a certain level estate taxes will be due and will have to be paid as well
7. Sell or liquidate any assets that are necessary or appropriate to be sold

At this point, another petition has to be filed – this time to request distribution of the assets to the heirs and payment of fees to the administrator or executor, and the attorney. As part of this request for distribution, the administrator or executor is required to file a detailed accounting with the court, unless waived by all of heirs.

Once the court orders distribution of the probate estate, the executor or administrator, also known as personal representative, must carry out the distribution order by transferring the assets to the heirs in the amounts or percentages designated by the order.  He or she must also obtain receipts to prove that all heirs received what they were entitled to before he or she can be formally discharged of their duties.

And last but not least, the executor or administrator must file an income tax return for the probate estate once the estate has been distributed.

A personal representative is someone appointed by the probate court to administer the decedent’s probate. There are two types of personal representatives: 

1. An executor - a person who is named in the decedent’s will as the executor. 
2. An administrator of the will- a person not named in the decedent’s will as the executor, but a person appointed by the court because the named executor is unable to act.
   Or - an administrator who is a person appointed by the court when the decedent dies intestate -meaning with no Will.

If the decedent dies with no Will, the persons who are entitled to act as the administrator or executor – in order of priority are:

• the decedent’s surviving spouse or domestic partner,
• the decedent’s children,
• the decedent’s grandchild,
• the decedent’s parents, or siblings

Where the decedent dies with a Will and names an executor, that person is entitled to act. However, if the primary person named as executor is unable to act and an alternate executor is named in the Will, they have priority to act.

Often there are disputes among family members about who should act as administrator or executor. A person with a felony record or a person who has undergone bankruptcy generally will have difficulty being appointed. The major reason is that executors and administrators are required to post a bond, and such a person would have great difficulty obtaining one.

Elderly persons having difficulty handling their own affairs generally should not act as an administrator or executor. However, such persons, if they are named as executor in the decedent’s Will or have priority as an administrator, can nominate a third party on their behalf. Minors may not act as personal representatives, nor can non-residents of the United States even though they may be a citizen of the United States.

Once the probate judge appointed an executor or administrator, the Court issues letters testamentary (for an executor) or letters of administration (for an administrator). These letters give notice to third parties (like banks, stock brokerage houses and title companies) that the person appointed has the power to deal with the decedent’s assets.

The average probate in California from the date the petition for opening the probate is filed to the date that the court orders distribution of the assets takes anywhere from nine months to a year – if the estate is under one million dollars. Let’s take a look why that is:

In most California counties, it takes six to eight weeks from filing the petition for an executor or administrator to be appointed.

Once appointed, the executor or administrator has to give notice to all creditors and those creditors have four months to file a claim.

The petition for distribution at the end of the probate also requires six to eight weeks before an actual order of distribution is signed by the court.

Here are some typical issues that can make the probate process take much longer:

1. The original petition did not get filled out correctly and got kicked aside by the court's staff.
2. If the total estate of the decedent is subject to estate tax
3. Disputes amongst the heirs about who should act as personal representative
4. Disputes amongst the heirs about who should actually receive the assets of the estate.
5. The number of different bank accounts, mutual fund accounts, etc. that the decedent owned and are required to be probated. The more assets there are the more time it typically takes to discover them, inventory them and appraise them.
6. The number of of parcels of real estate that the decedent owned that are required to be probated and whether any of those pieces need to be sold.
7. Selling of real estate in non-active markets
8. Whether the heirs of the estate require an accounting or whether they are willing to waive it.

You should expect to incur the following expenses:

1. A fee paid to the executor or administrator;
2. A fee paid to the attorney (if you choose to have one assist you); and
3. Court costs (i.e., filing fees, publication expense, probate referee fee, bond fee (if necessary), recording and certification fees;

The fee paid to the executor or administrator and the attorney are set by law and computed upon the gross value of the assets as follows: 

• 4% on the first $15,000
• 3% on the next $85,000
• 2% on the next $900,000
• 1% on the next $9,000,000
• ½% on the next $15,000,000
• “reasonable” compensation on the excess over $25,000,000

Gross value means the full value of assets, not taking into account any debt against the asset. For example, if the decedent owned a home worth $500,000 and had a mortgage on the property for $200,000, the fee would be based on the full $500,000 value not on the net value of $300,000 ($500,000 less $200,000).

There is no law that requires you to hire an attorney. You certainly can attempt to do a formal probate on your own and save the attorney’s fees. In my experience – even for the most organized and detail oriented person it almost always ends up taking much longer to distribute the estate to the rightful heirs. Most personal representatives that attempt to do this on their own usually get bogged down, overwhelmed, stressed out and utterly frustrated due to pressure by the other heirs.. The procedural requirements for probate in California are very complex. If you don’t comply with the most minute details, know the language and know your way around the complexities, your court hearing date will be continued (pushed back) for a minimum of four to six weeks. In addition, in any probate situation where there are multiple heirs and multiple assets, an experienced probate attorney can provide significant protection from taxing authorities and heirs, and will help you avoid liabilities, not to mention save you lots of time. What you need to understand is that for at least a year you will have another part-time job even with the help of an attorney, and a full time job if you try to do this on your own.

You should always hire an attorney who specializes in trust and probate work. A Probate and Trust Attorney will have the necessary experience to speed the probate process, minimize costs and provide you with legal protections from taxing authorities and help manage other heirs. Many attorneys who “dabble” in probate law will make mistakes that could cost you significantly in time and money.

Locate any trust or wills and related estate planning documents.
If there is no trust or will, the surviving family should decide on one person to take charge of the probate process.
Locate deeds, recent bank account statements, recent stock brokerage and mutual fund statements, life insurance and/or annuity policies, recent credit card bills, recent mortgage statements and insurance policies on all of the decedent’s real property and vehicles.
If no one is living at the decedent’s residence or if persons living there are inappropriate, have the decedent’s mail forwarded.
Inform Social Security of the decedent’s death.
Secure all credit cards.
Secure all of the decedent’s automobiles.

The attorney you select to assist you with your probate should not be someone who only occasionally handles probate cases.  With such an attorney you suffer the risk of longer time delays for completion of the probate as well as receiving improper or incomplete advice resulting in potential problems with heirs and/or taxing authorities.

In California, attorneys may become specialists in certain areas of the law. To earn the distinction of being a “specialist”, attorneys must take continuing education classes above and beyond the minimum requirements, gain sufficient experience in a variety of different types of cases in the area of their chosen specialty, obtain recommendations from other attorneys and judges and take another mini bar exam.

The more experience a probate attorney has, the more likely it is that he or she will have the necessary experience to handle any probate situation, no matter how complex.

You should look for an attorney who will commit to responding to your telephone calls within 4 hours (if in the office) or 24 hours (if in court). At the very least, his staff should be instructed to respond to you and ascertain the urgency of your request.

To be most effective, any attorney must be able to stay focused on the more crucial and important aspects of their client’s case, and not be bogged down with tedious paperwork, court filings and case file management. It is imperative that he or she has qualified staff to assist him or her with the day to day functions of any law firm, and capable of answering common questions regarding your case when he or she is not available.