Probate can be a complicated and expensive process after the death of a loved one. Some assets may need to go through probate, a process where a decedent's assets are distributed to family members. Unfortunately, probate has many downsides. Probate can be expensive, public, and time-consuming for beneficiaries.
If you pass away without a properly funded trust, your assets may need to be probated. Even if you have a will, your assets may need to be probated before they are distributed to your loved ones. Fortunately, there are ways you can position your assets so they do not have to go through probate. You could use a living trust to ensure your family does not have to deal with this difficult process.
Davidson Estate Law is a Bay Area family-owned estate law firm that is dedicated to helping individuals and families with probate, wills, trusts, advanced healthcare directives, powers of attorney, and more. We have offices in Oakland, Berkeley, San Francisco, Walnut Creek, San Jose, and San Mateo.
An estate may be probated with or without a will. If there is a will, then the probate process will review and validify the content of the will. If there is no will, then an administrator oversees the probate process, which includes transferring assets to heirs. Without a will in place, heirs receive assets based on California law, called intestate succession.
Probate is not only about transferring assets to beneficiaries or validating a will. There are additional issues addressed during the California probate process, such as the payment of debts to creditors. If you were to pass away with debts, then the probate process would determine how to notify and pay back your creditors.
The probate court will assign an executor or administrator if there is no will, or if one is not named in a will. An executor or administrator has various responsibilities during the probate process. Certain properties, such as a home, are subject to appraisal. This helps determine the value of the home or other properties.
Probate fees in California vary depending on the size of your estate and other factors. If a loved one's estate is subject to probate, you should contact a probate attorney at our firm to learn more about your options.
Although the court filing fees are fairly minimal (Approximately $435 per petition, depending on county), should you choose to hire a probate attorney to assist in the process, fees are calculated using a statutory fee schedule that is specified in the CA Probate Code. The fee is based on the GROSS size of the estate that is being probated. Meaning that even if there is a loan on a piece of real property, the fee is based on the date of death market value, not just the equity the decedent had in the property.
Here is the current CA probate attorney fee schedule:
4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9,000,000
0.5% of the next $15,000,000
Thus, even when probating the smallest size estate ($166,251), the attorneys fees alone will cost the heirs nearly $6,000!
Probate can significantly complicate matters for your loved ones. First, the process is time-consuming, confusing, and potentially expensive depending on the size of your estate and other factors. Additional probate complications include:
Delays: Probate extends the amount of time it takes to settle matters involving the estate, such as the transfer of assets to beneficiaries. The probate court supervises the process and requires a lot of paperwork. Probate can take months or years, depending on the circumstances. During this time, you and other heirs have limited access to the assets in the estate, including sale proceeds.
Lack of privacy: Probate is a court-administered and public process. You do not have the same level of privacy that a living trust can provide.
Loss of options: This is perhaps the most significant drawback of going through probate court. Without a valid will in place, the probate court makes decisions about the decedent's assets.
Estates do not necessarily have to go through probate. With careful planning and skilled help, you can help your beneficiaries avoid the difficult process involved with probate. One of the best ways to avoid probate is to place assets into a living trust.
After setting up a living trust, you would transfer the assets into the trust and name yourself as the trustee. You would also name a successor trustee, who would take over the responsibility of managing the trust if you became incapacitated, and after your passing.
In California, you can protect many types of assets from the probate process. You can put bank accounts, vehicles, and real property into a living trust. However, there are additional steps involved depending on the type of asset. You should always consult with an estate planning attorney to determine how to protect your assets after your passing.
There are also estates that do not need to go through probate because they are small. In California, you do not have to go through the normal probate process if your estate is $166,250 or less. Certain assets, such as those held jointly by spouses, can also avoid the probate process in California.
Probate is time-consuming and can delay the transfer of assets to your beneficiaries. You can speak with a Bay Area probate attorney at Davidson Estate Law to learn more about how to reduce the costs of probate or how to avoid the process altogether.
You should review your legal options if you are experiencing complications due to the probate process. Probate attorneys can help you resolve certain issues that may arise. A probate attorney could help with issues that include:
A contested or invalid will: One of the major issues with having multiple beneficiaries is that infighting may occur. For instance, one of the beneficiaries may contest the validity of the will by claiming the testator (person who signed the will) lacked the mental capacity to understand and sign the will. An attorney can help file a petition to contest the will and can defend an existing will.
Large estates: Probate is a complicated and expensive process for very large estates with many assets, including those in other states.
Preventing personal liability: If you are the executor of a will, there are common mistakes that could make you personally liable for damages. An attorney can help executors with the probate process.
Probate administration: An attorney can help with probate administration tasks, such as collecting assets or negotiating with creditors.
You should pick an estate lawyer with experience handling the probate process in California. The attorneys at Davidson Estate Law have decades of experience helping families with probate issues.
Davidson Estate Law is dedicated to helping families across the Bay Area with estate planning. Our attorneys can help establish trusts, powers of attorney, and wills. We also help with trust and probate administration. Davidson Estate Law has offices in Berkeley, Oakland, San Francisco, Walnut Creek, San Jose, and San Mateo. We offer in-person consultations. Reach us by calling or describe your situation on our online contact form.