Probate and Estate Administration

When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.  If your loved one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets.  The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court. Generally in California it is rare for a probate to be completed in less than a year, and if there is complexity the probate could take several years to complete. If you have been appointed a trustee or executor of an estate, it is a good idea to contact an attorney to ensure you are following proper procedure, filing the required tax forms, and properly performing an accounting to avoid time-consuming and costly mistakes down the road.

Testimonials

“I really want to thank you for all of your help and guidance over the past four years now since my mother died. I wouldn’t have known where to begin to help [name redacted] following her death. You made everything easy to understand and therefore, easy for me to learn to manage how to best help [name redacted]. You were such a help at different times too when I came up against bumps in the road. And then again, after [name redacted']’s passing, your guidance through the process of settling our family’s estate has been a huge support to [name redacted] and to me.”

- Leslie Hartman | Client

“As the executor of my parent’s trust, I knew I needed help and turned to your office remembering the excellent manner in which you prepared the trust for my husband and me. I am so glad I did!”

- Jeanette Lee | Client

FAQ

Q: What is Probate and why does everyone want to avoid it?

When a loved one passes away, his or her estate may have to go through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed.

Probate includes:

  • proving in court that a deceased person's will is valid
  • identifying and inventorying the deceased person's property
  • having the property appraised
  • paying debts and taxes, and distributing the remaining property as the will (or state law if there's no will) directs.

Typically, probate involves paperwork and court appearances. The length of time needed to complete probate of an estate depends on the size and complexity of the estate as well as the rules and schedule of the local probate court. Avoiding probate ensures more privacy, costs less and is faster than estate settlement through the court.

Probate rarely benefits your beneficiaries, and it always costs them money and time. If your loved one owned his or her assets through a properly drafted and funded Living Trust, it is likely that no court-managed administration is necessary.

Q: What happens if someone objects to the Will?

An objection to a Will, also known as a “Will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.

In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.

Q: Does probate administer all property of the deceased?

Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.

Certain types of assets are what is called “non-probate assets” do not go through probate. These include:

  • Property in which you own title as “joint tenants" or community property "with right of survivorship." Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.

Q: Do I get paid for serving as an Executor?

Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist with his or her duties.

Q: How much does probate cost? How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there are no disputes and there is no litigation involved.