San Francisco & Orinda Probate Attorney

Some of the advantages of probate include:

• It’s a predictable legal process for settling an estate.
• It can be very helpful when a person passes away without a will that identifies the decedent’s preferences for the disposition of the estate

Disadvantages of the process may include:

• It can be slow, often taking months or even years to complete.
• Probate can be expensive for the estate.
• There is less flexibility in the administration of the estate.

One of the most common questions people ask is whether a will is enough to avoid the probate process. Typically, it is not. A will generally addresses what the decedent wanted to happen to the estate property in order to avoid the state’s default property administration. To actually avoid probate, it is often necessary for the person with the estate to explore and implement options such as trusts, joint ownership of property, and other planning techniques prior to passing.

This is an important question to ask a probate attorney. If an estate in California is worth more than $166,250, then probate will be required. For an estate worth less than that amount, filing a small estate affidavit may help you avoid the probate process.

If someone close to you recently passed away, here are a few steps you can take to start moving forward with the probate process:

• Speak with a probate attorney
• Determine if the decedent designated someone to handle the estate
• Help obtain a death certificate
• Obtain the original will or a valid copy of the current will, if one exists
• Start to determine what assets may exist
• Help identify the names and addresses of close relatives who may have an interest in the estate
• Collect important records about taxes, insurance policies, and financial accounts

In California, probate can take up to a year to complete absent special circumstances. For example, if an estate files a federal estate tax return, the probate process could take up to 18 months. Other circumstances could also extend probate, so, again, it may be wise to take your questions to a qualified probate attorney.

When someone files a petition for probate of an estate, the person filing should notify all interested parties immediately. Under California law,  the person filing a Petition to Probate will need to provide notice of a probate hearing on the estate at least 15 days before the hearing.

Once a court grants probate, the estate must pull together assets, notify creditors, take steps to pay the estate’s debts and taxes, and distribute remaining assets according to the terms of the will or as required by the intestate (no will) procedures.

In most cases, banks will not release money without receiving certified Letters of Administration from the court that authorize the personal representative to pay bills and make financial decisions for the estate. However, releasing money from a bank or other financial institution may depend on how the financial assets are titled and whether the decedent executed a valid authorization with a payable on death designation. Again, assistance from an experienced estate attorney may help you avoid problems or financial issues.

As noted above, the amount of money you have before probate could affect whether an estate needs to go through formal probate. If an estate is worth less than $166,250, it may not need to go through probate.

In a probate case, a house may be sold like other estate assets. However, you may need to have the home appraised by a court-appointed probate referee, and you will need court oversight of the process. It may also take longer to complete the sales transaction than it would through the traditional, non-estate sales process.

At Business Estate and Tax Attorneys P.C., we can help explain and take the guesswork and worry out of the process of probating an estate. Give us a call for a consultation. Losing a loved one is hard enough. Don’t let concerns over the legal process of probate cause you more heartache (and heartburn).

When a decedent leaves behind a will, probate law requires the court to determine the validity and enforceability of the will. When the will is determined to be valid, the court will appoint the executor named in the will. If the named executor will not or cannot serve, or if the will does not name an executor, the court appoints an administrator. The executor carries out the intentions of the decedent as stated in the will. The executor pays off debts and taxes and then distributes the remaining assets to the beneficiaries named in the will.

A person who dies without a will is deemed to have died “intestate.” In that instance, the court appoints an administrator or personal representative to perform the duties that would be performed by the executor under a will. The court may need to identify the beneficiaries of the decedent’s estate under the state’s intestacy laws. Under the intestacy laws, the closest blood and adopted relatives will inherit the decedent’s estate. These individuals typically include a decedent’s children and grandchildren. However, if a person died without descendants, the list gradually expands out to siblings, parents and grandparents, cousins, and aunts and uncles, until the court finds the closest living blood/adoptive relatives.

An executor of an estate is expected to fulfill the following duties:

• Locate and maintain the assets of the estate, including paying all expenses necessary to maintain the assets and keep them productive and secure.
• Identify and contact the decedent’s and estate’s debtors and the beneficiaries of the estate.
• Pay all income taxes and other taxes that come due, including any estate taxes.
• Pay off the outstanding debts left by the decedent.
• Terminate the decedent’s leases and other contracts.
• Notify banks and government agencies of the decedent’s death.
• Set up an estate bank account and other financial accounts to maintain access to income and finances during the estate process.
• File required notices and documents with the court that is supervising the probate.
• Supervise distribution of assets to beneficiaries, filing necessary petitions with the court and other documents, such as title transfers and deeds to property.

If a lawsuit is filed against the estate, the executor is expected to defend the estate. If the decedent had legal claims at the time of their death or the decedent’s death has given rise to legal claims, the executor is expected to pursue those claims on behalf of the decedent and the estate.

If you have a loved one who has passed away or if you have been named the executor of the estate of a deceased family member or friend, you should expect to go through the following steps during the probate process:

• The named executor, a family member, or a representative of the decedent or decedent’s family (such as an attorney) will present the court with a copy of the decedent’s death certificate. This begins the probate process.
• If the decedent left a will, the named executor or a family member will ask the court to examine and validate the will.
• Once the will (if any) is validated, the court will appoint someone to direct the probate process – either an executor named in the will, or an administrator (usually a family member or close friend of the decedent).
• Depending on the circumstances, the executor or administrator may be required by the court to post a bond. The bond financially protects the beneficiaries of the decedent against errors made by the executor or administrator during probate.
• The executor or administrator will notify the creditors and the named or potential beneficiaries of the decedent about the probate.
• The executor or administrator will marshal the decedent’s assets and other property and determine the value of the estate including any debts and other liabilities.
• The executor or administrator will pay the decedent’s final debts, including credit card debts, medical bills and outstanding taxes, as well as the estate’s expenses (including funeral and burial costs) and the costs for attorneys or accountants hired to help with estate administration.
• Once all debts and expenses are paid, the executor or administrator will distribute the decedent’s remaining assets. That includes the transfer of titles to titled property (such as real estate or vehicles) to the persons specified in the will or the persons who are recipients under the state’s intestacy laws.

A probate lawyer’s fees for assisting with estate administration can vary depending on the attorney’s fee structures, compensation provisions in a will, or if extraordinary services were provided. Some attorneys work on an hourly fee basis, and experienced attorneys in cities and suburban areas may charge higher hourly fees. If your probate seems relatively straightforward and uncomplicated, a probate lawyer may be willing to work on a flat-fee basis.

California is among the few states that authorize probate lawyers to charge fees for ordinary services as a percentage of the value of the probate estate. Statutory fees range from four percent of the first $100,000 of estate value to one-half of one percent for estates ranging from $10 million to $25 million.

Under California Rules of Court 7.703, courts may allow additional compensation for extraordinary services by the attorney for the personal representative in an amount the court determines is just and reasonable. A non-exclusive list of activities that may warrant an award of extraordinary compensation includes the following:

1. Legal services in connection with the sale of property held in the estate;
2. Services to secure a loan to pay estate debts;
3. Litigation undertaken to benefit the estate or to protect its interests;
4. Defense of the personal representative’s account;
5. Defense of a will contested after its admission to probate;
6. Successful defense of a will contested before its admission to probate;
7. Successful defense of a personal representative in a removal proceeding;
8. Extraordinary efforts to locate estate assets;
9. Litigation in support of attorney’s request for extraordinary compensation, where prior compensation awards are not adequate compensation under all the circumstances;
10. Coordination of ancillary administration; and
11. Accounting for a deceased, incapacitated, or absconded personal representative under Probate Code section 10953.

In California, a personal representative is a person appointed by a court to administer the estate of a deceased person. If the estate being administered is that of a deceased person, the personal representative is either an executor if the deceased person left a will or an administrator of an intestate estate if the deceased person did not leave a will.

The personal representative is a special administrator if the estate of the deceased person must be preserved by the administrator’s particular acts or other terms specified under a court order.

Under California Probate Code section 8440, an administrator with the will annexed is appointed as personal representative if no executor is named in a will or if the sole executor or all the executors named in a will have waived the right to appointment or are for any reason unwilling or unable to act.

A personal representative’s compensation for ordinary services varies depending on the same statutory fee schedule as the personal representative’s attorney or if there are compensation provisions in a will. California Rules of Court 7.703 may provide courts the discretion to award additional compensation for extraordinary services by a personal representative in the following:

1. Selling, leasing, exchanging, financing, or foreclosing real or personal property;
2. Carrying on decedent’s business if necessary to preserve the estate or under court order;
3. Preparing tax returns; and
4. Handling audits or litigation connected with tax liabilities of the decedent or of the estate.