Probate is a series of legal proceedings that may (depending on the decedent’s estate planning documents, if any) be required on a person’s death. Specifically, if a person dies owning more than $150,000 of assets (subject to certain exceptions, as set forth below), someone (usually known as an “Executor” or “Administrator”) will be required to petition the Probate Court to get a judge’s approval to collect the decedent’s assets, pay the decedent’s debts and taxes, and thereafter distribute all remaining assets to the decedent’s beneficiaries (either according to the instructions the person set forth in his/her Will or as determined by California law if the person died without a Will).
The probate process is lengthy. A “simple” probate, where there are few assets, few debts, and/or few beneficiaries, may take as long as 12 months to complete, all the while the decedent’s beneficiaries are left without access to the decedent’s assets. A more complex probate, on the other hand, could take up to 2 years, and perhaps longer, to finalize.
Probate is also very costly. In California, two (2) people get paid from the Decedent’s assets, the person in charge (e.g. the Executor or Administrator) of collecting the decedent’s assets, paying his/her debts and taxes, and thereafter distributing his/her remaining assets to the beneficiaries, and his/her attorney who guides him/her through the probate process. Each such individual gets paid what is known as a “statutory fee” equal to 4% of the first $100,000 of probate assets, 3% of the next $100,000 of probate assets, 2% of the next $800,000 of probate assets, and so on. These fees are set by law.
Assets not included in Probate in San Diego
In calculating the $150,000 probate number referenced above, certain assets are excluded. Here is a list of some assets that may be excluded from probate:
- Assets owned by a living trust;
- Assets (e.g. 401(k)s, IRAs, life insurance policies, bank accounts with “payable on death” designations, etc.) that have beneficiaries properly designated;
- Assets owned in “joint tenancy” with someone else; and
- Mobile homes and automobiles
What is the Probate Process in San Diego?
The probate process begins with having a court appoint or approve an executor. The Executor is then tasked with carrying out a series of duties to pay off the debts of the estate and distribute the remaining assets to the decedents beneficiaries under the supervision of the Court.
What is an Executor and What are an Executors Responsibilities in Probate?
The Executor of an estate (sometimes known as an Administrator) is tasked with a great number of responsibilities. The more common responsibilities include:
- File the Petition for Probate;
- Lodge Will with the Probate Court;
- Notify beneficiaries;
- Notify the Director of Health Care Services if decedent received Medi-Cal benefits, or was the surviving spouse of a Medi-Cal beneficiary;
- Inform the IRS and California FTB of a fiduciary relationship;
- Inform the California FTB of death;
- Notify known and reasonably ascertainable creditors;
- Respond to creditor claims;
- Inventory and appraise probate assets and file same with Court;
- Sell assets;
- Pay debts;
- File tax returns and pay taxes;
- Prepare accountings;
- File report with Court; and
- Make distributions
Do You Need a Carlsbad Probate Attorney?
For many, handling the probate of a loved one’s estate is one of the few times they will encounter a legal proceeding. The process can be intimidating, confusing and difficult to absorb, especially if you are experiencing emotional upheaval. By hiring an attorney, an Executor / Administrator can gain experienced assistance with the process and be kept out of trouble and free of liability to the Court and the beneficiaries.
How Can I avoid Probate in San Diego?
Having read this far, you likely understand that there are few benefits to a probate, and in fact many reasons to avoid it – the most obvious being the time it takes to go through the process (which could be years) and the significant cost involved. You are by now also likely aware, that with proper advance estate planning, probate can be avoided. In California, living trusts avoid probate with respect to assets that have been transferred into the trust before death. In other words, living trusts avoid the court procedure (i.e. probate) otherwise required to transfer assets to a person’s beneficiaries at death. See estate planning at RassmanLaw.
How Much Does Probate Cost in San Diego?
Two questions that we regularly receive is How Much Does Probate Cost in San Diego; and Who is Responsible for Probate Costs? In California, two (2) people get paid from the Decedent’s assets:
- the person in charge (e.g. the Executor or Administrator) of collecting the decedent’s assets, paying his/her debts and taxes, and thereafter distributing his/her remaining assets to the beneficiaries; and
- his/her attorney who guides him/her through the probate process.
Each such individual gets paid what is known as a “statutory fee” equal to
- 4% of the first $100,000 of probate assets,
- 3% of the next $100,000 of probate assets,
- 2% of the next $800,000 of probate assets, and so on.
These fees are set by law.