The California Probate Process:

California probate is the process of a determining the rights and obligations of person’s legal and financial matters after their death. Probate serves as a way to transfer assets, resolve debts and clear title so the decedent’s assets can be transferred to the rightful heirs. It can be a complicated and time-consuming process. Typically, for estates larger than $100,000, court supervision is required to oversee the process and approve the distributions.

Probate allows the estate of the deceased individual to be distributed to the beneficiaries or rightful heirs. The distribution will follow the decedent’s Will or if no Will exists, then distribution will follow the California “intestate” laws.

What is the cost of probate?
The cost of probate depends on the size of the estate, but can be additional depending on with the complexity of administration. California Probate Code section 10810 sets the maximum fees attorneys can charge for a probate. However, a probate court can order higher fees for cases that are litigated or more complicated, such as tax problems, real estate sales, etc. For probates within the normal process, the fees are four percent of the first $100,000 of the gross value of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine a reasonable fee.

The fees listed below are the California statutory fees used to compensate attorneys and executors in probate cases for various sizes of estates. Generally, the value of the estate is determined by the inventory included in the estate. Debts are not included in determining attorney’s fees. 

Estate Value         Attorney Fee         Executor Fee
$100,000               $4,000                   $4,000                                  
$200,000               $7,000                   $7,000
$300,000               $9,000                   $9,000
$400,000               $11,000                 $11,000
$500,000               $13,000                 $13,000
$600,000               $15,000                 $15,000
$700,000               $17,000                 $17,000
$800,000               $19,000                 $19,000
$900,000               $21,000                 $21,000
$1,000,000           $23,000                 $23,000
$2,000,000           $33,000                 $33,000

Appraisal of the Estate
A probate referee does the appraisal of an estate to determine the fair market value of the real and personal property assets. The fair market value does not include mortgages and other debts. Thus, a $500,000 home with a mortgage of $499,000 is still valued at $500,000 for attorney and executor fees.Probate referees receive a fee based on 0.1 percent of the assets they appraise.

Court Costs
In addition to the statutory fees for attorneys, there are costs for appraisal fees, publication costs, court filling fees, and miscellaneous fees charged by the county. A typical estate could easily incur $1,000 to $3,000 in court costs and other mandated fees.

Advantages of probate

• One of the main advantages to probate is a judge supervises the proceedings and thereby protects all beneficiaries’ rights. The judge can settle disputes between beneficiaries or between beneficiaries and the executor. There is the assurance that the decedent’s estate will be distributed according to their Will or by California intestate laws, if no will exists.

• In most cases, the executor is required to prepare an accounting and report of their activities.

• There is a cut-off period for any creditor’s claims. Any known creditor must be given notice of the probate. They have four months to file their claims. Generally, if they do not file within the specified time-period, their claim is barred forever. After probate, the beneficiaries can have peace of mind knowing the assets they received are free from any future claims or actions.

• There is no probate cost until death. Therefore, the decedent does not incur any cost during his or her lifetime in contrast to a living trust where the costs are paid at the time of creation and can cost several hundreds of dollars. In probate, all costs and fees are paid after death out of the estate before anything is transferred to the heirs.

California Probate Alternatives
In California, there are alternatives to the full, formal probate. Some of these are:

• If the total gross value of a deceased person’s personal property does not exceed $100,000, an affidavit procedure may be used on behalf of the beneficiaries to avoid a “full” probate. This is for personal property only, and does not include real property.

• If the gross value of a decedent’s real property does not exceed $20,000, an affidavit procedure can be used on behalf of the beneficiaries to avoid a “full” probate.

• If the deceased person’s real property does not exceed $100,000, an abbreviated court process may be used. It is much quicker and less expensive than the formal probate proceedings.

• If the surviving spouse or registered domestic partner is the sole heir to all or part of the decedent’s estate, they may file a special petition to avoid a formal probate. This method is faster and less expensive than a formal probate.

Whatever your circumstances the attorneys at Mortensen & Reinheimer, PC will provide you with legal guidance and assistance in selecting the best method of handling your probate matters.

For more information or an appointment, please call MORTENSEN & REINHEIMER, PC at (714) 573-7149, or you may send an e-mail to info@ocprobate.net and we will contact you to set up a free initial consultation.