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California Probate Codes
Probate Isn't So Bad
Probate is one of the most misunderstood and unappreciated areas of the law. Probate is nothing more than a process designed to guarantee that a deceased person's legitimate debts are paid and that the remainder of their hard earned assets and estate are transferred to the proper parties. The word probate comes from the word "prove". It applies to proving what is the decedent's last Will, if he or she had a Will, or proving who is the decedent's lawful heirs, if there is no Will.
Probate Gives You Access to the Estate Property
Probate is a process that can be completed in six to eight months by a competent lawyer with lengthy experience in the area. During the probate administration process, the person who is appointed the personal representative of the decedent usually is given independent powers that allow handling of all aspects of the deceased person's affairs until the estate property, both real and personal, is distributed to the heirs. Family allowances are available during probate to family members in need and who were financially dependent on the deceased person.
Probate Attorney Fees
Probate fees are paid out of the estate at the time the estate is finally distributed. The amount of the fee is set by California law: 4% of the first $100,000.00 in appraised value of the estate, 3% of the next $100,000.00, 2% of the value
on the next $800,000.00 and 1% on the next $9,000,000. In a typical estate worth $500,000.00 the attorney's fee would be approximately $13,000 than 2½% of the value of the estate. The estate is valued by a probate referee appointed by the court. This appraisal may be challenged by any interested party. The ultimate appraised value determines the attorneys' fees and the heirs' distributive shares. It also becomes the tax basis for determining future capital gains taxes, if any.
Personal Representative (Executor or Administrator) Fees
The personal representative (executor or administator) is also entitled to a fee set by law that is based on the exact same formula, source and schedule as applies to the attorney's fees.
Duties and Responsibilities of Personal Representatives
Personal representatives, or executors (where there is a will) or administrators (where there's no will) have duties and obligations of trust to all of the beneficiaries of the estate. They are not allowed to personally benefit from the position as representative and must protect the rights of all beneficiaries. If they fail in their role, they may be removed and a new representative appointed by the court.
Professional Administrators
Sometimes professional administrators are appointed by the court to ensure that the estate is managed professionally and appropriately by a disinterested and skilled person. This works well when the family is in turmoil after the death of a loved one and can not cooperate in the administration.
Can an Executor Steal Assets from a Decedent's Estate?
The executor, administrator or personal The executor, administrator or personal representative of a decedent in a probate has access to the bank account and other assets of an estate. If they steal these assets, that is, use them for purposes not connected to the estate and its beneficiaries, then they are guilty of a crime and can be prosecuted. In most cases, the theft is protected by a surety bond, which is a form or theft insurance to protect the beneficiaries of estates.
What If The Other Party Is Lying?
A party can lie, and many do, even under oath. Such lies amount to "perjury", a crime. Will they be punished? Rarely. Do we use their lies against them? Frequently.
How Long Will It Take?
Six months is about the minimum when everything goes right and the client cooperaties fully and eagerly in the process. Eight months is typical. No probate can close until four months have elapsed from the date the court opens the probate. The four-month period allows creditors to make their claims. Contested probates usually take one to three years to complete.
Why hire a lawyer?
Probate is a necessary and complicated process. It is highly technical and procedurally difficult. Mistakes can cost money and time. A skilled and competent legal counsel can shepherd a probate through the system in the least time and with the least problems and expense.
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