What is probate?
Probate is the court-supervised process designed to transfer property from one who died to a beneficiary. With proper estate planning, one can avoid the probate process and manage an estate without involving the courts.
Why is probate such a “bad” word?
Although probate provides an orderly and fair method for transferring assets, it is time-consuming and expensive.
Because probate utilizes the court system, it is necessary to accommodate the court’s busy schedule when probating an estate. A typical probate can take at least nine months to complete; a probate case may even take several years. (Some disputes over the estates of celebrities who died without wills have even dragged on for decades.)
Nonetheless, probate’s greatest drawback is its high cost.
The high cost of probate
There are significant fees associated with probate in California:
♦ The probate attorney: The attorney is paid a percentage fee based upon the value of the estate. Currently, the attorney fee in California equals $4,000 for the first $100,000 of the estate, 3% for the next $100,000 of the estate and 2% for the remainder of the estate up to $1,000,000, and so on.
♦ The executor: Executor fees follow the same fee schedule as is paid to attorneys, as listed above.
♦ The referee: A probate referee is hired to value non-cash property in the estate, such as stocks, bonds, and real estate. The referee is paid a fee equal to 1/10th of 1 percent of the value of the non-cash assets of the estate.
♦ The bond: California probate requires the posting of a bond, unless the will waives a bond and the executor is a California resident. A bond can be quite expensive.
♦ Court fees: Because probate is a judicial process, a probate will always require court filing fees. These fees can add up.
| Proper estate planning can keep your estate out of probate, saving time, money and headaches for your loved ones. To learn more about estate planning, click here to read our California estate planning FAQ. |
| Zev will travel to your location in Orange County and San Diego. Zev is also happy to work with clients located outside of Southern California. Click here to learn more. |
Are all estates subject to probate?
No, not all estates are subject to probate.
♦ Smaller estates: In California, estates that are worth less than $150,000 are not subject to probate. Those estates can be processed more quickly and at a lower cost.
♦ Property passed to spouses: Property passed between spouses is not subject to probate, regardless of how much the property is worth.
♦ Property held in trust: Property in trust will pass to a beneficiary without the need for probate, hence the popularity of living trusts.
Naming beneficiaries to avoid probate can be problematic
Property is generally not subject to probate if by operation of law it passes to a beneficiary at someone’s death. For example, joint tenancy accounts, jointly held property with rights of survivorship, life insurance proceeds and retirement benefits can all pass to the survivor without probate.
Many people attempt to avoid probate by naming beneficiaries on their bank accounts and other assets. This tactic can be effective when used properly. However, this approach also has pitfalls, particularly when minor children are involved.
To learn more about the benefits and disadvantages of naming beneficiaries, please click here.
To learn more about California probate, please click here to watch this video from The Honest Lawyer on YouTube.
| Probate is complex and can be an emotional process. To request your free consultation or if you have any questions, please call Zev at (949) 200-7607, send an email to or complete the contact request form on this page. |