If a loved one has recently passed, with or without a will you may need to administer their estate assets through a court process called "Probate". There are many factors involved in determining if your loved one's estate must go through the probate process or if you will be able to avoid it. Pretlove Law is experienced in helping families navigate through this difficult time and can help you avoid the probate process, if possible, or guide you through it if it cannot be avoided. Below you will find resources to address a few of the frequently asked questions regarding Probate and it's process.
What is the Probate process?
The probate process is a court supervised process to administer the estate of a person that has passed away. If the deceased person had a valid will, the court will approve the person appointed in the will to administer the estate. If there is no will a person will need to be nominated as the executor of the estate and approved by the court. Once this step is complete the appointed executor may begin gathering estate assets and information in order move the probate forward. The process is document intensive and there are multiple steps that the court must oversee. Eventually the court will approve a final distribution, this may take anywhere from 6 months if the court calendar is slow (which is unlikely) to a year or even longer if the probate is being contested.
How much does Probate cost?
The cost of the Probate procedure is set by California State Law (Cal. Prob Code 10810) as a statutory fee. This fee is calculated by a percentage formula which depends upon the size of the estate. The formula for the statutory fees is as follows:
4% of the first $100,000 of the gross value of the probate estate
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
.5% of the next $15 million
A reasonable amount (determined by the court) for any amounts higher than $25 million
Can I avoid Probate?
The best way to avoid Probate is to make sure you create a living trust and transfer your assets into it. If you are dealing with a loved one's passing and there is no trust, the next best thing is to find out if there are other avenues you may use to avoid probate. These "other avenues" include situations such as:
- The estate value is less than $150,000.00. Under California Law you may avoid probate by signing an affidavit stating the estate is a "small estate" under California terms and then distributing the assets
in accordance with that process.
- If any other person has a valid reason to claim ownership over specific property in the estate, a '
petition may be filed in court to change ownership without a probate process.
- If there is a trust, but the property was never transferred into the trust, you may petition the court to rectify this, thereby avoiding probate.
The above items are a few examples on how specific situations could help avoid probate. For an in-depth consultation for your specific situation please contact our office to set up an appointment.