What is probate?  In California, when a person dies having assets in their name worth over $184,500, their estate is subject to probate whether they had a will or not. 

A will does not prevent probate.  The only difference between having a will and not having a will is that with a will, the testator chooses who will administer their estate (executor) and to whom their assets will be distributed (as opposed to the State of California making that decision).

Probate is the court-supervised process for identifying and gathering the decedent’s assets; paying taxes, debts, and expenses; and distributing the balance to beneficiaries.  A probate typically takes about 1 year to complete. 

If the decedent had a will, Probate Code § 8200 requires that the person in possession of the Will, must deliver (aka deposit) the Will to the Court within 30 days after the decedent’s death.

If there is a will, the person nominated as the executor will file a petition seeking their appointment as executor of the estate.  If there is no will, any person (even a creditor) may petition the court requesting to be appointed as the personal representative of the estate, which appointment is determined by the Probate Code and the court.

After the petition is filed with the court, all beneficiaries and heirs are provided notice of the probate proceeding, and notice is made public through publication in a local newspaper.  Thereafter, any interested person may challenge the petitioner’s appointment as the personal representative or contest the admission of the will into probate.

After a personal representative (“executor” if there is a will and “administrator” if there is no will) is appointed, the personal representative will provide notice to all known creditors to allow them 120 days to file a claim against the estate.   In the interim, the personal representative will inventory the decedent’s assets, which must be appraised as of the date of death by the court appointed Probate Referee. 

The personal representative will pay all valid debts and file the decedent’s final income tax returns (and ensure all tax liabilities have been paid in full).  Thereafter, the personal representative will file a first and final report and accounting (or waiver of accounting) detailing what has been done during the probate proceedings, what happened with the assets (income and expenses), what assets are on hand, and the proposed distribution of the estate.

To encourage the winding up of a decedent’s affairs, the Probate Code authorizes compensation be paid to both the personal representative and their attorney for ordinary services. The amount to be paid is based on the value of the estate. 

• Four percent (4%) on the first one hundred thousand dollars ($100,000)
• Three percent (3%) on the next one hundred thousand dollars ($100,000)
• Two percent (2%) on the next eight hundred thousand dollars ($800,000)
• One percent (1%) on the next nine million dollars ($9,000,000)
• One-half of one percent (1/2%) on the next fifteen million dollars ($15,000,000)
• For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

The Probate Code also provides that the court may allow compensation for extraordinary services (e.g., carrying on a decedent’s business, certain tax matters, sale of assets, litigation) performed by the attorney for the personal representative in an amount the court determines is just and reasonable. 

RJS LAW’s experienced trusts and estates attorneys have assisted numerous clients in administering estates of all sizes and complexities and can guide you through the many technical aspects of a probate proceeding to minimize time and expense. 

While our trusts and estate team is here to help guide you through the probate process, we are also here to help create individualized estate plans to avoid the probate process.  Please call at 619-595-1655 or contact us at RJS LAW for a free consultation regarding estate planning, trust creation, and probate needs.

Written by Brian M Malloy, Esq.