Category: Probate Videos

Probate is a court process where the judge sits essentially in a role as referee to make sure that the property goes to the correct people. Now, the correct people are either, first, the people who are listed in a will, or second, the people who inherit according to the law as it set out in the probate code.

Now, the process is that the person named the executor or another interested party will file a petition to probate the will. Once that petition is filed, there are certain intermediate court hearings and deadlines that have to be followed.

Once those hearings and deadlines occur, the executor will file a request to distribute the assets and to close the estate. On average, it takes anywhere between 18 and 24 months for a probate case to go through the court process.

The answer in most cases is no. The purpose of probate is to make sure that property gets to the correct people after a decedent has passed away. If the decedent did not have property in his or her name when they died, or if the property was held jointly with another person such that it passed to that other person automatically. In those circumstances, there is no need for a probate case.

And the short answer is yes, it is expensive in most cases relative to doing other types of estate planning that might help you avoid probate. The fees that are charged in probate are first, the executor is entitled to be paid for his or her service of being the executor of the probate estate. The reason for that is being the executor is a lot of work. The fee that the executor is able to be paid is a percentage of the gross estate value. What that means is it’s the fair market value of all of the probate assets on the date of death of the decedent without subtracting any of the debts.

And so if someone owned, for example, a million dollar house but it had an $800,000 mortgage, the probate fee would be based on the million dollar fair market value of the house. Now, the percentage is a stair step down percentage. So it starts at 4% and it decreases as the value of the assets increase and it’s a percentage that is based upon each level or each value of assets. And so for example, it’s 4% for the first 100 thousand, 3% for the next 100 thousand, 2% of the 200 thousand to a million, and so on. For a million dollar estate, the probate fee is 2.3%.

Now, the second cost of probate comes from attorneys fees. The probate law says that an executor can hire an attorney to help him or her and the attorney is paid in the same way as the executor is, as a percentage of the gross estate value. And the percentages are the same. So for example, with a million dollar estate the executor would receive 2.3% or $23,000 and then the attorney would also receive 2.3% or $23,000 on a million dollar estate. And so this is significant amount of money and cost to have someone’s estate go through probate.

One question I receive is what happens aftera probate case is done in California? Well, to get to the point of a case being done, that means that the executor will have had to file an accounting with the court listing all of the assets that the decedent owned on the date of his or her death and the value of those assets.

Now, usually when that is done, the executor will also ask for a court order authorizing the executor to distribute those assets to the beneficiaries.

Once the judge or the court signs that order, the executor is permitted to distribute assets to the beneficiaries. Once that’s done, the probate case is resolved and there is no further action. In most cases, that is required by the executor.

And the answer is yes. But you need to get the court’s approval in most cases before you do so. Having a house in probate means that the house is one of the assets of the decedent, the person who recently passed away, and the house is now part of the probate case and under the jurisdiction of the court.

Generally, the executor is the person who is responsible for making sure that assets are first marshalled or determined to be the assets of the decedent, and then the assets ultimately are distributed after the court says it is okay to do so. So you can sell a house that is in probate as the executor. You just need to get the judge’s authority to do so first most of the time.

One question that I receive is can you contest a will after the probate case is done? And the short answer in most instances is no, you cannot contest a will after the probate case is done. The probate case will put the will at issue. And so if you are interested in contesting the will, you need to do that within the context of the probate case.

Now, the grounds for contesting the will generally have to do with either the will is not valid for some technical reason. The will is not valid because it wasn’t signed by the decedent, the person who passed away, or the will was signed, but the person who signed it was unduly influenced by another person.

So those generally are the grounds for contesting the will. And once the will is admitted into probate, that is the time for someone to raise one of these challenges as to the validity of the will.

Well, if a house is in probate, what that means is that it is one of the assets that was owned by the decedent, the person who passed away upon his or her death. And a probate case was started and the house was listed as one of the assets of the probate estate.

And so what that means is that the court has authority and oversight of the house and generally the executor has to get the court’s approval before the house can be sold.

In other words, the house is part of a court case and the judge ultimately will decide whether the house can be sold or not.

Now, probate if there is a will and probate if there is not a will are very similar to each other. It starts when someone files a petition with the court.

If a will exists, they have to attach a copy of the will and ask the court to admit the will into probate. If there is no will, then that person is said to have died intestate, which means dying without a will. When that happens, the property is ultimately distributed by the court to the people who are listed in the probate code. That is usually a surviving spouse, if there is one, surviving kids.

If there are no surviving spouse or surviving children, then it generally goes up the family tree to the parents and then out the branches to the siblings. So if there is no will, probate works very similar in California to the situation if there was a will.

It involves a court process with the court having oversight to make sure that property gets distributed to the correct people.