The purpose of probate is to establish clear title or ownership to your assets after your death. Probate is the court-supervised legal process undertaken to wind up a person's legal and financial affairs if they died without a will, or if there is no other means of transferring property by living trust, operation of law, jointly titled property, or by transfer on death beneficiary designation. The court supervised probate proceedings provide a means by which the decedent's property and assets are gathered and accounted; debts, creditors and estate taxes are paid; and the remaining property, assets and cash are distributed to the beneficiaries. The named executor in the Will is in charge of this process and probate provides an orderly method for administration of the estate. If there is no Will, an administrator is appointed by the probate court to oversee the process. The Administrator or Executor is accountable to the beneficiaries and must perform their administrative duties in a fair and legal manner. In California, probate proceedings are conducted in the Superior Court for the county in which the decedent resided, and can take at least eight months and sometimes as long as several years.
The attorney's fees to handle a probate administration are set by statute. In addition, there are also costs to a probate, which include filing fees, probate referee fees, and publication fees, that total about twenty-five hundred dollars ($2,500) per case. The costs are paid directly to the court, to the probate referee, or to the newspaper where the notice of petition is published.
As an example, the statutory probate fees on an estate with a gross value of one million dollars ($1,000,000) would be $46,000: $23,000 for the executor or administrator and $23,000 for the attorney, computed as follows:
4% of first $100,000 $ 4,000.00
3% on next $100,000 3,000.00
2% on next $800,000 16,000.00
Total $23,000.00 x 2= $46,000
Tomine Law will explore and help you take advantage of any solutions available that will allow property to be excluded from the probate process. Using these strategies can reduce probate fees and help beneficiaries get access to assets more quickly. If there are no meaningful alternatives, we will start the probate process.