What is Probate?
Probate is the court supervised legal process required to transfer or inherit property after the person who owned the property has passed away. It involves the general administration of a deceased person’s will or the estate of a deceased person without a will.
Who Has to Go Through Probate?
There are certain assets that do not need to go through probate. Assets that already have a beneficiary will automatically transfer to that beneficiary without going through probate. For example, many retirement accounts and life insurance policies will have a beneficiary. If so, you do not need to go through probate for those assets. In addition, if assets are held by two or more people as joint tenants, then upon the death of one of the joint tenants, that asset will pass to the surviving joint tenant(s).
If the value of a person’s “probate estate” (those assets that do not have a beneficiary and are not held as joint tenants) is less than a certain value, you may be able to transfer those assets through a Small Estate Affidavit without going through probate. That amount changes every few years and is based on the year that the person passed away.
If the “probate estate” is over the set amount for a Small Estate Affidavit, you will need to open up a probate whether or not there is a Will.
How Long Does Probate Take?
A formal probate case typically involves three main steps:
- Opening a Case
- Administering the Estate
- Closing the Estate
The process usually takes 9 to 18 months but can take longer in complex cases.
How Much Does Probate Cost?
In California, statutory probate fees for executors and attorneys are based on the estate’s value and follow this tiered structure:
- First $100,000: 4%
- Next $100,000: 3%
- Next $800,000: 2%
- Next $9,000,000: 1%
- Next $15,000,000: 0.5%
- Amounts above $25,000,000: A reasonable amount determined by the court.
Important Considerations:
- Fees are calculated on the gross value of the property subject to probate, not the net value after debts.
- The estate, not the beneficiaries, is responsible for paying these fees.
- Extraordinary Fees: Additional fees may be awarded for services beyond “ordinary” administration, such as will contests or complex real estate transactions.
- Probate Referee: A court-appointed referee assesses the fair market value of the estate’s assets and charges approximately 0.1% of the total value of appraised assets.
- Other costs include:
- Filing fees
- Publication costs
- Bond fees