Do I have to use a lawyer for probate?

No, a lawyer is not mandatory in probate. However, it may be a good idea to hire a lawyer if the estate is complex.

A lawyer can help you meet all deadlines and avoid mistakes and delays, and can sometimes help avoid disagreements among family members over minor or major issues. But the lawyer represents the interests of the personal representative, not the beneficiaries.

You may not need a lawyer if:

• you are the sole beneficiary,
• the decedent’s property consists of common assets (like house, bank accounts, insurance, etc.)
• the will is simple and straightforward, and
• you have access to good self service materials.

(“About Probate – How to Probate a Decedent’s Estate.” The Superior Court of California – County of Santa Clara. http://www.scscourt.org/self_help/probate/property/probate_overview.shtml. Retrieved 17 July 2017.)

Probate for an uncontested will

If a will is to be admitted to probate, the Executor of the will must notify all those named within a will, along with all those legally entitled to receive property from the deceased in intestate succession. This informs “them of the will and give them an opportunity to file a formal objection to admitting the will to probate.” (“What goes on in the probate of an uncontested will?” Free Advice Legal.  https://law.freeadvice.com/estate_planning/probate/probate_of_uncontested_will.htm. Retrieved 17 July 2017.) The hearing is then scheduled several weeks or months after filing.

If the court receives no objections to admitting the will to probate, and if everything seems in order, the court will approve the petition, appoint the personal representative, order that taxes and creditors be paid, and requires the personal representative to file reports with the court to assure all the deceased’s property is accounted for and distributed in accordance with the terms and conditions of the will. (“What goes on in the probate of an uncontested will?” Free Advice Legal.  https://law.freeadvice.com/estate_planning/probate/probate_of_uncontested_will.htm. Retrieved 17 July 2017.)

How much does probate cost?

There may be variables (such as if both the attorney and the executor are to receive a fee), but in general there are standard probate fees in place.

California Probate Code section 10810 sets the maximum statutory fees that attorneys can charge for a probate. Higher fees can be ordered by a court for more complicated cases. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000…

…The fee charged by the court to file a probate petition is $435, but may be slightly higher in some counties due to surcharges.  There will be an additional $435 fee when the petition for final distribution is filed.  There are other fees for publication of the probate notice, for the probate referee, and for certification of copies of court documents. (“California Probate”. California Living Trusts. http://www.ca-trusts.com/probate.html. Retrieved 5 July 2017.)

Do I have to go through probate?

Probate is not always necessary. Whether or not you must go through probate court depends on several factors: the amount of money involved, who is claiming the property, the type of property being inherited or transferred, and how the property is owned.

A few examples from the California Courts’ websites:

Type of Title Ownership:  : Sometimes all or some of a dead person’s property passes directly to the beneficiaries because of how the property is owned. So if the property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people, or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to clarify his or her ownership of the transferred property.

Type of Contract:  Sometimes all or some of a dead person’s property does not need to go through probate to pass to the beneficiaries. This is because this property is a type of contract with named beneficiaries. Examples of this are life insurance that pays benefits to someone else other than the dead person’s estate, retirement benefits, death benefits, and trusts. (“Wills, Estates, and Probate”. California Courts.  http://www.courts.ca.gov/8865.htm. Retrieved 5 July 2017.)

How long does probate typically take?

“In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.” (“Wills, Estates, and Probate”. California Courts.  http://www.courts.ca.gov/8865.htm. Retrieved 5 July 2017.)

How does the probate process typically work?

When a loved one dies without a will or trust, his or her loved ones have to figure out how to transfer or inherit the property.

Probate means that there is a court case that deals with:

• Transferring the property of someone who has died to the heirs or beneficiaries;
• Deciding if a will is valid; and
• Taking care of the financial responsibilities of the person who died. (“Wills, Estates, and Probate”. California Courts.  http://www.courts.ca.gov/8865.htm. Retrieved 5 July 2017.)

Usually the family must go to court to work through the probate process. The process typically follows these steps:

1.  The custodian of the will (the person who has the will at the time of the person’s death) MUST, within 30 days of the person’s death:

1. • Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.

1. • Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).

If the custodian does not do these things, he or she can be sued for damages caused.

NOTE: If there is no will and a court case is needed, the court will appoint   an administrator to manage the estate during the probate process. The   person who wants to be the administrator must file a Petition for Letters of Administration (Form DE-111). The administrator usually is the spouse,  domestic partner, or close relative of the dead person.

2. Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (Form DE-111). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).

The Petition for Probate has different options, like:

• Petition for Probate of Will and for Letters Testamentary
• Petition for Probate of Will and for Letters of Administration with Will Annexed
• Petition for Letters of Administration

Note: To start a probate case you will need more forms than just the Petition for Probate form.  Talk to a lawyer for help with your case. Click for help finding a lawyer.

3.   After a probate case is filed:

• The probate clerk sets a hearing date.
• The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (Form DE-154), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
• The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
• The petitioner must arrange for notice to be published in a newspaper of general circulation.
• A court probate examiner reviews the case before the hearing to see if it was done correctly.
• Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
• The personal representative gathers up the assets and prepares an Inventory and Appraisal (Form DE-160) to be filed.  The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate feferee in your county. (Get more information on probate referees.)
• The personal representative provides formal notice to creditors with the Notice of Administration to Creditors(Form DE-157) and pays the debts.
• A final personal income tax return is prepared for the person who died.
• The probate court figures out who gets what property.
• A Report of Sale and Petition for Order Confirming Sale of Real Property (Form DE-260) is filed with the court so that sales of real property are confirmed by the court.
• If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
• The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
• After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties. (“Wills, Estates, and Probate”. California Courts.  http://www.courts.ca.gov/8865.htm. Retrieved 5 July 2017.)

What is probate?

In any jurisdictions in the U.S. that recognize a married couple’s property as tenancy by the entireties, if a person dies intestate (owning property without a will), the portion of his/her estate so titled passes to a surviving spouse without a probate.

If the estate is not automatically devised to the surviving spouse in this manner or through a joint tenancy, and is not held within a trust, it is necessary to “probate the estate”, whether or not the decedent had a valid will. A court having jurisdiction of the decedent’s estate (a probate court) supervises probate, to administer the disposition of the decedent’s property according to the law of the jurisdiction and the decedent’s intent as manifested in his testamentary instrument. Distribution of certain estate assets requires selling liquid assets, including real estate. There are exceptions for smaller estates. For example, California has a “Small Estate Summary Procedure” to allow the summary transfer of a decedent’s asset without a formal Probate proceeding. The dollar limit by which the Small Estate procedure can be effectuated is $150,000. (“Affidavit for Transfer of Personal Property Worth $150,000 or Less”. California Courts. http://www.courts.ca.gov/10440.htm. Retrieved 8 June 2017.)