Estate Settlement & Probate
CALIFORNIA PROBATE AND ESTATE ADMINISTRATION FAQ
Frequently Asked Questions About Probate and Estate Administration
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Easy to understand, plain English, FREE REPORT, to guide you through the most common Estate Administration questions; A Survival Guide for Those Left Behind!–FREE REPORT
- DISCLAIMER:
- Important note:
- What is probate?
- Who can start a probate?
- Are there “estate administrations” which do not go through the court?
- Are there simplified procedures for small estates that are subject to Probate?
- Why do I want to have an estate administered?
- Are there any advantages to a probate?
- How much does a probate proceeding cost?
- How much does an out-of-court administration cost?
- When does the attorney get paid with a probate?
- When does the attorney get paid with an out-of-court administration?
- How long does an administration take, Probate or non-Probate?
- Is the court ever involved with an out-of-court administration?
- Why can’t an estate which doesn’t involve probate be closed immediately?
- What is the Probate tax?
- Am I required to have an attorney for Probate?
- Do I need an attorney for an out-of-court administration?
- In what state should the probate take place?
- In what state should an out of court administration take place?
- What do you do when a loved one has died?
- How many death certificates should one order?
- How Can One Find A Competent Estate Administration Attorney?
- Questions To Ask To Determine If An Estate Administration Attorney Is Really Competent.
- Does It Matter If the Attorney Has His Main Office In Another City?
- What is your approach to handling estate administrations?
DISCLAIMER: Merwyn J. Miller is licensed to practice in the State of California only. Our office is located in Encinitas, (San Diego County) California. (Encinitas is adjacent to the following communities: Cardiff, Carlsbad, Del Mar, La Costa, Leucadia, Oceanside, Rancho Santa Fe, San Marcos, Solana Beach, and Vista.) [See our SERVICE AREA] The information provided in this FAQ page is offered for informational purposes only; it is not offered as and does not constitute legal advice. Mr. Miller does not seek to represent you based upon your visit or review of this Web page set. You should not make legal hiring decisions based upon brochures, advertising or other promotional materials. As you read this FAQ, keep in mind that the answer to any given situation could change drastically with only a small change in the facts. Therefore, do not rely upon these answers to solve your or someone else’s problem. Instead, seek competent professional assistance.
Important note: Keep in mind that the following answers are based on California law and practice and may or may not be applicable to people and cases located in other states!
- What is probate?
“Probate” is more properly referred to as “estate administration” and is the administration of the estate of a decedent through court proceedings. It is the method by which the rights of all parties are determined relative to the decedent’s estate. These parties would include heirs (those entitled to inherit by state law in situations where no Will exists or the Will does not cover all assets governed by the Probate Court), Will beneficiaries, creditors, and taxing authorities. The proceeding effectively passes title to assets of a decedent to those entitled to them.
- Who can start a probate?
Most people are surprised to find out that any “interested” person can commence a probate proceeding. This includes creditors, close family members (as defined), heirs, or anyone having a claim against the estate of the decedent. See Calif. Prob C. §8000 and 48 (scroll down to section 48).
- Are there “estate administrations” which do not go through the court?
There are always loose ends to tie up when someone dies. Whether a Living Trust is used or not. Out of court estate administrations are often used to tie up these loose ends when a court proceeding is not required. This would be the case where all assets of the decedent are either titled in joint tenancy, titled in a Living Trust, or have specified beneficiaries tied to the asset (i.e. life insurance, bank accounts with “pay of death” beneficiary designations, IRA’s). Out of court proceedings generally deal with all the same issues as a Probate does, but the court is not involved.
- Are there simplified procedures for small estates that are subject to Probate?
The California Small Estates Procedure can be used for relatively small estates. This procedure is available where less than $100,000 in non-real estate assets exist that would normally be subject to probate proceedings. Where no real property is involved no court proceeding is required. There are also some simplified procedures available where California real estate is involved and the gross fair market value of the personal property and real property is less than $100,000. However, some court involvement (although much less than a full Probate) will be required.
- Why do I want to have an estate administered?
I guess if all the decedent owned was furniture, nothing really needs to be done for the beneficiary to enjoy the asset. But if there are assets that have a formal title, then something must be done to change that title into the beneficiary’s name. If no action is taken, then the beneficiary will not be able to access the bank account, sell or refinance the real estate, or get the benefit of the securities portfolio.
- Are there any advantages to a probate?
What some people consider an advantage others may consider a disadvantage. With a probate, creditors generally have four months to file a claim. In situations where no probate is commenced, creditors generally have up to a year. Most people typically consider the shorter period to be better for the beneficiaries of the estate. Additionally, with a probate, the beneficiaries wind up with a court order at the end of the day. This court order states what they have inherited. This is not typically true for out of court administrations. The court order can be valuable where arguments or title claims are a concern.
- How much does a probate proceeding cost?
Probate costs in California are determined by a statutory formula. Here’s the link to my probate cost schedule.
The actual statutory formula is a little bit complex. However, for ease of approximation, a simplified formula can be used. It works for probate estates with a value between $100,000 and $1 million. It is 2% of the probate estate value + $3000. That sum would be the statutory fee for the attorney and the executor would receive an identical sum. There are also court costs and probate referee fees but they are typically relatively small. Taxes, of course, can also be an expense but these would be due whether an in court administration (probate) or an out-of-court administration were used. Extraordinary fees are also a possibility for either the attorney or the executor if either does anything outside the “ordinary” services. But, presumably, this would also be charged if an out-of-court administration were used.
See my FAQ page for Estate Planning Question #10.
- When does the attorney get paid with a probate?
Attorney fees (and executor fees) are generally paid toward the end of the case and only after a court order approving them. Fees are different than reimbursement for costs. Costs are often reimbursed periodically during the case.
- When does the attorney get paid with an out-of-court administration?
In our office, we generally take a retainer at the front end of the case.
- How long does an administration take, Probate or non-Probate?
Estates of more than $1,500,000 with a Living Trust typically take 10-12 months to settle. If just a Will were used, Probate is very often required to settle the estate and this court process will typically take 15-20 months. In smaller estates with a Living Trust, 4-8 weeks used to be typical. Unfortunately (or fortunately), depending upon how you look at it, the California legislature passed a law requiring all trust beneficiaries and heirs of a decedent to be sent a specific notice and giving them four months (but in certain cases 6 months) to contest the trust. So now, it still generally takes 4-8 weeks to complete the substantive efforts to settle the estate, but the estate must stay open until the contest period has run its course. If Probate is required 10-14 months is fairly standard. All of this process is referred to as “Estate Administration.”
- Is the court ever involved with an out-of-court administration?
Court intervention can be requested at any time during the administration and can be done on a “piece-meal” basis. In other words, just because you request a court ruling on one aspect of the administration does not mean you are stuck with the court for the entire administration.
- Why can’t an estate which doesn’t involve probate be closed immediately?
As stated above, there are always loose ends to tie up. I have heard speakers (although not attorneys) say that they typically settle an estate where a Living Trust was used in 30 minutes. That sounds great but it just doesn’t make sense. First, in California, by statute, there is a four month settlement period during which the estate has to be held open. This allows time for any disgruntled heirs to challenge the Trust on the basis of fraud or whatever other grounds might be available. Now, you may not agree with the rationale for this but our system of justice is based on giving everyone an opportunity to state their case and bring in the court to make a ruling. From that perspective, allowing a four month period for people to take that action makes sense. Second, where estate or income taxes are due, one would want to pay these as late as possible so they can retain the money for as long as possible. Both of these points argue against settling all but the most minimal estates in 30 minutes. There are also other reasons but these two illustrate the point rather well.
- What is the Probate tax?
There isn’t any. What people are referring to when they use this term is attorneys fees and court costs.
- Am I required to have an attorney for Probate?
No. You also are not required to have an attorney defend you in a criminal case. But it’s generally a good idea in both situations. First, and at the most basic level, you will need to figure out whether a Probate is required and what forms need to be filed with what court. If you are willing to put in a little effort, you probably can do this. The forms issue and which court requires which forms in what order can be quite frustrating but it is what I consider the “paper pushing aspects” of the case. You can, of course, find paralegals advertising in the yellow pages or newspaper who will offer to assist you on this.More importantly are a myriad of other issues. Some of these issues might involve taxes, creditors, and how distribution will be made where more than one beneficiary exists. For example, assume there is a house and a bank account and the bank account is worth $50,000 less than the house. There are two beneficiaries. Beneficiary #1 wants the house and beneficiary #2 wants the bank account. How can you deal with that issue while keeping the county property tax from increasing due to a proposition 13 “change in ownership”? These are some of the areas where having an attorney becomes invaluable. See my FAQ page for Estate Planning Question #21 on the Difference Between a Typist, a Paralegal, and an Attorney.
- Do I need an attorney for an out-of-court administration?
See my answer above except the “forms” issue tends not to be as big an issue since you’re not dealing with the court.
- In what state should the probate take place?
This is a much more complicated question than it appears. Generally, the “home” probate (what’s called the domiciliary probate) takes place in the state where the decedent resided at his death. Since a court in one state generally can’t issue orders affecting title to real property in another state, a court proceeding needs to be started in the state where the real property is located. This is called the ancillary probate. So there could be more than one probate proceeding going on at the same time. That usually means more than one attorney (because often attorneys only practice in one state) and more than the usual fee.
- In what state should an out of court administration take place?
There are situations where the decedent died residing in one state, real estate is located in another state, the Trust was written in a third state, and beneficiaries live in a fourth state. This is what is called a multi-state trust. Again, this is a complicated question. But usually, the rules of the state in which the decedent resided at death are the ones that are followed although the other states’ laws may have to be considered depending upon the circumstances.
- What do you do when a loved one has died?
I have a free eBook request available via email that I wrote that answers this question and gives you a step by step approach as to what to do at the outset.
- How many death certificates should one order?
I have a free eBook request via email that I authored that answers this question and many more.
- How Can One Find A Competent Estate Administration Attorney?
In those states, such as California, where qualified organizations have certified attorneys as specialists in the estate administration field (See explanation of the California Certification program), that organization can be contacted. In other states or where no certified specialist attorney is available in the locale in question, one can contact one of the larger commercial banks. These banks generally have Trust Departments. (The old savings and loans, most of which are now banks, do not usually offer this type of service.) The local branches can usually provide the Trust Department phone number (although sometimes the teller may be unaware of this division of the bank). Ask the phone operator at the Trust Department to connect you with one of their Trust Officers. Ask the Trust Officer for a referral to a local, competent estate administration attorney. These officers have constant contact with attorneys in the local community and should know who is competent. Do keep in mind that there are two types of Trust Officers. A marketing trust officer and an administrative trust officer. Either can probably give you the necessary information but the marketing officer will probably have more attorney contacts.In my mind this method for finding a competent attorney is superior to lawyer referral services (LRS). With any LRS you never know what qualifications have been required of its attorneys and you typically are referred to whoever is next on the list (whether super qualified or only marginally competent).
- Questions To Ask To Determine If An Estate Administration Attorney Is Really Competent
Inquire about the attorney’s credentials: Does he or she have any specialized education? Keep in mind that all California attorneys must take 25 hours of continuing education every three years to maintain the license. So ask what the titles of the courses were to determine if the courses were relevant to estate administration.Does the attorney teach courses in the estate administration law field? Teaching is a great method to keep up to date.
Will the client actually be interviewed by and consult with the attorney who attracted attention in the first place, or will an associate attorney whom you do not know and/or have not had an opportunity to investigate handle the matter? Is the attorney who will service the client fresh out of law school with limited experience? ASK FOR THE NAME OF THE ATTORNEY WHOM YOU WILL ACTUALLY SEE AND THE YEAR IN WHICH HE OR SHE GRADUATED FROM LAW SCHOOL. Many people feel that a person must have been out of law school a minimum of 5 years before the legal academic knowledge has been matured by sufficient practical experience. Some people feel even longer is necessary.
Many people think these are great questions but they would simply be too embarrassed to ask them. If you can’t see yourself asking these questions, you don’t have to. Because the State Bar of California already has through its board certification specialty program. See explanation of the California Certification program. So if you’d be too embarrassed to ask this series of questions, just ask one: Ask the attorney if they are a board-certified specialist in the field of Estate Planning, Trust, and Probate Law (This is the field that covers estate administration.)
- Does It Matter If the Attorney Has His Main Office In Another City?
for a complete discussion of this topic, see Question #19 on our Estate Planning FAQ page.
- What is your approach to handling estate administrations?
We adhere to a team approach with the client and the client’s other professional advisors. See my page on Working with Professional Advisors. Basically, we want you to know that you are not “on your own.” You probably have not been through anything like this before, so it’s easy to get overwhelmed. We’ve been handling estates for almost 30 years and have developed a system which breaks down everything into bite-sized pieces. The result is that there is less chance that you will get overwhelmed. Our goal is to guide you step by step to solve the problems in the least expensive and quickest manner. In the long run we are attempting to save you money and heartache from death/gift/income tax or other expense perspectives and to keep the process running smoothly to completion.
DISCLAIMER: Merwyn J. Miller is licensed to practice in the State of California only. Our office is located in Encinitas, (San Diego County) California. (Encinitas is adjacent to the following communities: Cardiff, Carlsbad, Del Mar, La Costa, Leucadia, Oceanside, Rancho Santa Fe, San Marcos, Solana Beach, and Vista.) [See our SERVICE AREA] The information provided in this FAQ page is offered for informational purposes only; it is not offered as and does not constitute legal advice. Mr. Miller does not seek to represent you based upon your visit or review of this Web page set. You should not make legal hiring decisions based upon brochures, advertising, or other promotional materials. As you read this FAQ, keep in mind that the answer to any given situation could change drastically with only a small change in the facts. Therefore, do not rely upon these answers to solve your or someone else’s problem. Instead, seek competent professional assistance.
