What is probate?
Probate is the legal process that takes place after someone dies. It includes:
· Proving in court that a deceased person’s will is valid (usually a routine matter)
· 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 by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person’s property. To see everything EZ Probate Assist has to offer when it comes to estates, executors, and probate contact me at your earliest convenience as time is of the essence in these matters.
How does a probate case get started?How does a probate case get started
Probate begins with the filing of a petition for probate at the Superior Court in the county where the decedent lived. The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether bond will be required.
Who decides whether the petition will be approved?
The decision is made by the judge who hears the case, but the preliminary work is done in most counties by a court staff member who is called the probate examiner. The probate examiner reviews the file, makes sure that state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner disagrees with the recommendation, a hearing will be held to give the petitioner a chance to present his or her case.
How does the probate process work?
Probate usually works like this: After someone’s death, the person that is named in the will as executor or if they die without a will, the person appointed by a judge, the administrator, files papers in the local probate court. The executor/administrator proves the validity of the will and presents the court with a list of any property, debts, and who is to inherit what was left. Then, relatives and creditors are officially notified of the death and the open probate case.
The executor must find, secure, and manage assets during the probate process, which can commonly take a few months to a year. Depending on the contents of the will, and on the amount of the debts, the executor may have to decide whether or not to sell any real estate, securities, or other property. As an example, if the will happens to make a number of cash bequests but the estate consists mostly of valuable artwork, the collection might have to be appraised and sold to produce cash. Or, if they have many outstanding debts, the executor might have to sell some or all of the properties to pay them as instructed.
In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings continue on. Eventually, the court will grant the executor permission to pay the debts and taxes and divide the rest among the people or organizations named in the will. Finally, the property will be transferred to its new owners. In some case the property can actually be sold once a Letter of Administration is received from the courts appointing the executor to the estate. The funds would be deposited by the escrow company into a Trust Account established by the executor in the name of the estate (this is the only way they will deposit the funds). The executor must maintain a strict accounting of all of the funds and receipts for any items paid, however no distributions to heirs can be made until approval from the courts.
Does all property have to go through probate when a person dies?
No. Most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In California, for example, you can pass up to $100,000 of property without probate, and there’s a simple transfer procedure for any property left to a surviving spouse.
In addition, property that passes outside of a will – such as, through joint tenancy or a living trust is not subject to probate.
Who is responsible for handling probate?
In most situations, the executor named in the will takes this job. If there isn’t any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person’s assets.
If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
How can I avoid probate?
Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can’t easily be paid from the property that is left.
Spending time and effort planning to avoid probate depends on a number of factors, such as age, health, and wealth.
· For a younger person in good health, adopting a complex plan to avoid probate now may mean you’ll have to re-do it as your life situation changes.
· If you have very little property, you might not want to spend your time planning to avoid probate because your property may qualify for your state’s simplified probate procedure.
· If you’re in your 50s or older, in ill health, or own a significant amount of property and are of subaltern wealth, you’ll probably want to do some planning to avoid probate and the possibility of your heirs spending a great deal of money to settle the estate, money that could have potentially been distributed amongst them.
What if someone challenges a will or probate petition?
That is known as a contested estate proceeding. In that event, it is the job of the executor (and his or her attorney) to defend the will during court proceedings.
How do I get a certified copy of the death certificate?
Contact the County Recorder’s Office in the county where the decedent died.
For San Diego County
Health & Human Services Agency
Office of Vital Records
3851 Rosecrans Street. Suite 802
San Diego, CA 92110
What is the San Diego Probate Courts address and phone number?
New Central Courthouse
1100 Union St. Third Floor
San Diego, CA 92101
8:30 a.m. – 4:00 p.m. Monday – Friday
(619) 844-2676 Office
8:30 a.m. – 11:30 a.m. Monday – Friday
For other office locations and probate information PLEASE CLICK THE LINK ABOVE
Other County Probate Courts Information
311 East Ramsey Street
Banning, CA 92220
Santa Ana, CA 92701
111 North Hill Street
Los Angeles, California 90012
Lancaster, CA 93534
Do I have to hire an attorney to assist with the probate?
No, but if the estate is large or appears to be complicated, it definitely is a good idea. An attorney can ensure that you file all the correct documents and meet all required deadlines. Since this can be a very complex process you may find it valuable to at least sit down for a consultation which many provide for free. It can’t hurt to get all of the facts. As an alternative there are several paralegal agencies dedicated and specialized in handling the probate process that can save an estate several dollars. Ideally this may not be suitable for complicated cases. Again, you’ll have to speak with them to determine if this suits your situation.
I have a small estate. Does it have to be probated?
In California, estates that are valued at more than $150,000 (including only probate assets) generally have to be probated. There are exceptions made if the decedent is survived by a spouse.
What is a probate asset?
Assets held only in the name of the decedent are generally probate assets. An asset is not counted as a probate asset if it is owned in joint tenancy (but not if it is owned in tenancy in common) or if there is another means of determining who receives the asset after death of the owner, such as
· Beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be added to the estate and probated.
· If there is a surviving spouse, a formal probate can usually be avoided with a spousal property petition.
What is an Executor or Administrator?
The executor, also called an administrator or personal representative, is the person who is responsible for management of the probate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent’s closest relatives have the highest priority to become administrator of the estate. Depending on the circumstances, this person may be called the executor, administrator, personal representative, or administrator with will annexed.
What are the Executor’s or Administrator duties?
Administration of the estate includes those listed below. This list is NOT exhaustive and may require many, many more task depending on the estate.
· Managing the assets to prevent losses,
· Paying bills for the estate,
· Filing tax returns,
· Preparing an inventory of the assets,
· Locating heirs,
The goal is to wrap up all of the loose ends of the decedent’s financial affairs and distribute the estate to the beneficiaries without further legal problems.
How can someone see the will of a person who has died?
If the estate is in probate, you can go to the Superior Court in the county in which the decedent lived, and ask to see the file. The file will include the will and all other documents that have been filed in the case.
Who will receive a notice that the probate is being started?
State law requires that notices be sent to all of the heirs of the decedent, beneficiaries who are mentioned in the will, and proposed executors. The notice will state the date and time of the hearing and the courthouse where the case will be heard.
How much does probate cost?
The table below shows the fees for attorneys and executors, as provided by the California Probate Code.
The fees listed below are the California statutory fees used to compensate attorneys and executors in probate cases for various sizes of estates. If both the attorney and the executor receive a fee, the amount paid will be double that shown below. The value of the estate is determined, in general, by the inventory for the estate. (If an accounting of the estate has been waived, the total value of the estate for attorney’s fees purposes is the inventory, plus gains on sales, minus losses on sales.) Debts are not included in determining attorney’s fees, and if a house is appraised at $1,000,000, for example, and it has a mortgage of $800,000, it is still considered a $1,000,000 asset for the purpose of calculating attorney’s fees.
For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000.
More information and information on any possible changes or updates to the fee table about probate, please visit San Diego County Probate Rules pg. See Local Rules pdf Chapter 16 Fees, Commission and Cost Reimbursements, Rule 4.16.2
The fee charged by the court to file a probate petition in San Diego County currently is $435, but may be slightly higher in some counties due to surcharges. There will be an additional $435 fee when the petition for final distribution is filed. There are other fees for publication of the probate notice, for the probate referee, and for certification of copies of court documents. In addition the listing fee to sale a property in probate is also governed by the Probate Code and can be different in each state or local. Be sure to check for the county in which your probate is filed for the exact cost associated with your petition. Fee’s listed here are not guaranteed or meant to be a quote.
Appraisal of the estate
Estates are appraised by probate referees, who are appointed by the State Controller to determine the fair market value of the asset. The fair market value includes mortgages and other debts, which can result in an appraisal of the property that is higher than the equity that the deceased owned in the property. Probate referees receive a fee based on 1 percent of the assets that have been appraised.
Can fees go higher?
In probates that are complicated by lawsuits or tax problems, the attorney and executor can ask the judge to approve fees that are higher than those set by state law.
Advantages of Probate
· The proceedings are controlled by a judge, who can decide disputes between heirs or between the heirs and the executor.
· Creditors are required to submit their claims against the estate within a four-month period, provided they have been notified of the probate.
· The executor is required, in most cases, to prepare an accounting and report of the executor’s activities.
Disadvantages of Probate
· The cost is usually much higher than would be required for the administration of a living trust for an estate valued at the same amount.
· It usually takes longer to probate an estate than to administer a trust. Most estates don’t need the supervision of the court unless disputes occur.