Navigating probate can be overwhelming for executors and beneficiaries. Our firm offers expert legal guidance throughout the probate process, ensuring the estate is handled efficiently and in full compliance with the law. Our probate administration services include:
- Filing for Probate: We assist in preparing and filing the necessary court documents to begin probate, including the petition to open probate and the appointment of an executor or administrator.
- Asset Identification and Valuation: We help identify, gather, and appraise the decedent’s assets, ensuring a thorough inventory for the estate.
- Debt and Creditor Management: We assist with notifying creditors, handling claims, and resolving outstanding debts against the estate in accordance with California law.
- Tax Compliance: Our team ensures all necessary tax returns are filed, including final income tax and estate tax returns, while advising on any tax liabilities the estate may face.
- Distribution of Assets: Once all debts and taxes are settled, we handle the distribution of assets to beneficiaries according to the terms of the will or, if no will exists, in accordance with state intestacy laws.
- Dispute Resolution: Should disputes arise during probate, whether between beneficiaries or over the validity of the will, we offer experienced representation to resolve conflicts through negotiation or litigation.
PROBATE BASICS
A probate petition is a legal document filed with the court to start the probate process after someone passes away. In California, this petition is used to officially begin the process of managing and distributing the deceased person’s assets and debts.
Here’s a simple breakdown:
Probate means that there is a court case that deals with:
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
California law provides a statutory fee for the administrator of an estate. The Public Administrator is allowed the same compensation as private administrators. The allowable fees are based on the value of the estate are as follows:
The state of California has a “default” Estate Plan for you. It’s called the Probate Code, which are a set of laws to help the State distribute your property. Unless you qualify for some limited exceptions, the Court must and will distribute this property according to these laws.
The problem is that the California “default” distribution is blind to your wishes and intentions, is a public proceeding, is combative, is extremely costly, and is often very lengthy.
The Probate code distributes property like a robot. “Fair” is a hopeful word. “Blind” is a better one. Debts must be paid immediately. Everyone gets an equal share only according to your family structure. No provisions for anyone else. If none of the above, California takes the rest.
This is done through a public proceeding where everything you own is exposed, must be listed, all creditors must be notified of your valuables, and all your potential heirs, even those you might not want, are notified of your Estate.
It is often contentious and litigious, since the creditors want to get paid and are knocking on your door, relatives want a share, friends claim that something is rightfully theirs, family members say that “he promised me X”, and all of them are bringing their lawyers to the fray.
Thereafter, a substantial part of your Estate will have to pay for the costs of proceedings and the substantial and mandatory attorney fees. The fees are often into tens of thousands and they are mandatory and are taken out of your estate first. Since they are a percentage of your estate, they can grow to enormous proportions. Furthermore, the executor appointed by the Court is also entitled to fees, and those often mimic the statutory fees that attorneys get.
Finally, the Probate proceeding takes months if not years, especially if there are competing claims. 10 months is a fair average, but years are not unheard of. This delays your successors ability to access funds to pay ongoing expenses and mortgages, delays their ability to sell or buy real estate, which is often devastating to successors that may depend on it.
Having a proper estate plan circumvents this process altogether.
The way this works, is that once you create a Trust, you transfer your titled assets into the Trust name. That is all your assets become part of the Trust, which means that you personally do not own them anymore.
This means that at the time of your passing, you as an individual don’t own anything, and therefore there is no need for a Probate proceeding, since everything is in the name of your Trust.
So instead, it is your Trust specifically which outlines who gets what, when, and how. Your successor Trustee distributes the property according to your specific wishes. Everyone walks away. Probate avoided. This is such a powerful tool that this type of Trust is called a “probate avoidance” Trust. Think of it as a “Government Avoidance Trust”.
Simply put, proper estate planning documents do everything possible to avoid a probate proceeding all together.
Contact our offices or book a free consultation in order to determine whether your matter would need to be submitted to probate or if probate can be avoided.
Here’s a simple breakdown:
- Filing the Petition: When someone dies, a family member or the person named in the will (called the “executor”) files the probate petition with the court. This document asks the court to approve the executor to handle the estate.
- Why It’s Necessary: Probate is needed if the person who passed away had significant assets or if their property wasn't set up to transfer automatically, like through a trust or joint ownership.
- What Happens Next: Once the petition is filed, the court reviews it and, if everything is in order, appoints the executor. The executor will then gather the deceased person’s assets, pay any outstanding debts, and eventually distribute what’s left to the heirs or beneficiaries.
Probate means that there is a court case that deals with:
- Deciding if a will exists and is valid;
- Figuring out who are the decedent’s heirs or beneficiaries;
- Figuring out how much the decedent’s property is worth;
- Taking care of the decedent’s financial responsibilities; and
- Transferring the decedent’s property to the heirs or beneficiaries.
In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
California law provides a statutory fee for the administrator of an estate. The Public Administrator is allowed the same compensation as private administrators. The allowable fees are based on the value of the estate are as follows:
- 4% of the first $100,000
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9,000,000
The state of California has a “default” Estate Plan for you. It’s called the Probate Code, which are a set of laws to help the State distribute your property. Unless you qualify for some limited exceptions, the Court must and will distribute this property according to these laws.
The problem is that the California “default” distribution is blind to your wishes and intentions, is a public proceeding, is combative, is extremely costly, and is often very lengthy.
The Probate code distributes property like a robot. “Fair” is a hopeful word. “Blind” is a better one. Debts must be paid immediately. Everyone gets an equal share only according to your family structure. No provisions for anyone else. If none of the above, California takes the rest.
This is done through a public proceeding where everything you own is exposed, must be listed, all creditors must be notified of your valuables, and all your potential heirs, even those you might not want, are notified of your Estate.
It is often contentious and litigious, since the creditors want to get paid and are knocking on your door, relatives want a share, friends claim that something is rightfully theirs, family members say that “he promised me X”, and all of them are bringing their lawyers to the fray.
Thereafter, a substantial part of your Estate will have to pay for the costs of proceedings and the substantial and mandatory attorney fees. The fees are often into tens of thousands and they are mandatory and are taken out of your estate first. Since they are a percentage of your estate, they can grow to enormous proportions. Furthermore, the executor appointed by the Court is also entitled to fees, and those often mimic the statutory fees that attorneys get.
Finally, the Probate proceeding takes months if not years, especially if there are competing claims. 10 months is a fair average, but years are not unheard of. This delays your successors ability to access funds to pay ongoing expenses and mortgages, delays their ability to sell or buy real estate, which is often devastating to successors that may depend on it.
Having a proper estate plan circumvents this process altogether.
The way this works, is that once you create a Trust, you transfer your titled assets into the Trust name. That is all your assets become part of the Trust, which means that you personally do not own them anymore.
This means that at the time of your passing, you as an individual don’t own anything, and therefore there is no need for a Probate proceeding, since everything is in the name of your Trust.
So instead, it is your Trust specifically which outlines who gets what, when, and how. Your successor Trustee distributes the property according to your specific wishes. Everyone walks away. Probate avoided. This is such a powerful tool that this type of Trust is called a “probate avoidance” Trust. Think of it as a “Government Avoidance Trust”.
Simply put, proper estate planning documents do everything possible to avoid a probate proceeding all together.
Contact our offices or book a free consultation in order to determine whether your matter would need to be submitted to probate or if probate can be avoided.