Information about probate

Upon death, the legal title of property from the deceased’s estate has to be transferred to the intended beneficiary or beneficiaries. This is required when the person dies and has a will in place; when a person dies "intestate" (meaning without a will); and, when there is a living trust that has been improperly executed or improperly funded. If a person dies intestate, then it is up to the court to determine by law, who is the legal heir to the estate and the property. Collectively, these processes are known as probate. Probate can be avoided by the execution and proper funding of a living trust.

The probate process is also used to collect any taxes due on the transfer of the property. Any income taxes in respect to the deceased must also be calculated and paid at this time. Outstanding debts are also settled through probate, and in California, a deadline is set by which time creditors must file any claims that they have. The probate process in California takes approximately one to three years for uncomplicated and uncontested estates. The balance of the estate or property following settlement of any outstanding debts and taxes is then distributed to the beneficiaries. The nature of probate means that if there is no estate or property to be distributed then there is no need to go through probate. In California a summary probate proceedings, which is faster and less expensive than a traditional probate, is applied if the gross assets in the estate are less than $100,000.

Probate is necessary not only to facilitate distribution of property from the will (if there is a will), but also to allow objections to the will by other parties. Objections can arise for a variety of reasons, and investigations may also be required for such reasons which include: the possibility that the deceased was not of sound mind when the will was made; the possibility that another will was made at a later date; the possibility that the will was forged or that the deceased's decision was improperly influenced.

If any of the assets have a successor by contract, then they will not be eligible for disbursement through probate. These assets will automatically go to the contractual beneficiary. An example of a contractual disbursement is a death benefits paid out on a life insurance policy or a designated beneficiary on a retirement account.

When a will goes through probate, both the heirs and all of the beneficiaries will be notified about the will. This is where contestation of the will may take place. Concurrently, a list of the deceased’s assets is made up in preparation for disbursement in accordance to the will. The disbursement of the decedent’s assets also has to be accounted for, whether they were distributed to beneficiaries or were used to pay off debts and expenses.

One aspect of the expenses that probate entails is the legal fees. In California a lawyer is generally paid a percentage of the estate on a sliding scale. The larger the estate, the lower the percentage of fees the lawyer will be due. Depending upon the size of the deceased’s estate will determine the total attorneys’ fees.
Probate is a public process. Therefore, anyone can access the probate records which will include the value of the estate and the distributions to beneficiaries.

For a consultation with a probate attornety, please fill out the form on this page, call us at 858-350-3124 (San Diego) or toll free at 800-361-1961.