Probate
Fast help with probate for people in the East Bay, Oakland, and all of the San Francisco Bay Area – California
What is Probate?
Probate is the legal process the is used to settle the estate of a person that died. The person that died is called the “decedent”. If you are reading this, it is likely a person close to you has died. We are going to try and lessen the burden you are experiencing right now and explain more about the probate process and what has to be done. The first important thing you have to know about probate is that the process takes place in Court in the county where the decedent maintained residency when the decedent passed away. The rules on residency are a little complicated so if it is not clear where the decedent had official residency, call our office.
Does Probate have to be done?
Yes — with a few exceptions.
- If the decedent had a valid Trust established prior to death, a probate is generally not necessary. Therefore it is very important for you to look through the decedents important papers to try to find anything that the word “Trust” in it. Sometimes a Trust is called a “Living Trust” or a “Revocable Trust”. If you find any of those, call us to review.
- The second situation where a probate may not be necessary is when a decedents estate is worth less than $150,000. In those cases, a probate is still necessary but it is a shorter simpler process called a “Summary Probate”. If the estate is worth more than $150,000, then probating the estate through the Court system is required by law.
- There are a few other exceptions for spouses and some assets are not “probate” assets but that gets too complicated to explain. If you have a special situation, call our office for help.
If you are reading this it is likely someone you loved has died. Do you need to talk with us or have an emergency, call 925-953-2024 or click here.
Does Probate have to be done if the decedent had a Will?
Yes — Even though a person had a Will, probate must be done in order to transfer the assets of the decedent to the beneficiaries, heirs, or next of kin. The same exceptions above will apply but there is simply no way around a Probate unless the above exception applies.
What if the decedent died without a Will?
When a person dies without a Will or a Trust, the person or persons that get the decedents property is decided by the California Rules of Intestate Succession, which is a complicated set of laws that leave property to a person’s heirs based on a hierarchy of relationship between the decedent and the heir or heirs. Click here to see California Probate Code §6400-6414 but don’t try to figure out on your own who is and who is not an heir. Some situations are pretty simple to figure out but many other are complicated and require an attorney to help make the determination on who is entitled to property so that property is legally managed and transferred.
Do I need an attorney to Probate my relatives estate?
No — you can try to probate the estate yourself but it is not recommended and very risky. The California Probate Code is very long and very complicated. It starts with code §100 and ends with code §21700, not to mention all of the supplemental laws involved in probating an estate including the California Rules of Court.
The short answer is you need an attorney to probate the estate but the good news is the estate pays for the probate so generally there is no out of pocket attorney fees you have to pay. Trying to probate an estate yourself is like trying to operate on yourself. It does not work. It is risky because you as the person probating the estate have liability for hundreds of laws and situations.
Here is a short list of some of the ways you can be sued and held liable for mistakes or omissions:
- If you fail to properly secure and insure assets of the estate you will be held personally liable.
- If you cause the estate to lose value due to any improper or negligent act or omission.
- If you do not properly notify taxing authorities like the IRS and California State Franchise Tax Board and determine the decedents taxes owed. You will be personally liable for all taxes and penalties.
- If you do not properly publish notice in the newspaper of the decedents death and notice of administration of the estate.
- If you do not properly notify all known or reasonably ascertainable creditors of the decedent. You will be personally liable for those unpaid debts.
- If you improperly sell, give away, discard or transfer property. You will be personally liable for damages.
- If you make any mistakes that cause damage or loss of value to the beneficiaries or heirs, you will be personally liable to the beneficiaries and heirs for the mistakes you make.
The internet is a wonderful tool but just like you can’t use it to operate on yourself, you will need help to probate and estate of your loved one and protect yourself from personal liability.
for a Free Quick Help Guide on the most common MISTAKES people make when probating an estate and what you need to do in order to make the process go smoothly.
What is the cost to Probate and estate?
The cost to probate an estate is based on a percentage of the value of the estate. The percentage ranges from 4% down to 1% depending on the size of the estate. There are two people that get paid to probate an estate —You and the Attorney. The fee is paid out of the estate funds at the END of the process and the fees are reviewed and approved by the Court. You do NOT have to pay anything up front.
California Probate Code §10800 states the statutory fees paid to both the Attorney and the Personal Representative of the estate. You are presumably the personal representative of the estate so you would also get paid from the estate at the end of the process. Sometimes the personal representative is called the executor or administrator and while those terms have slightly different legal meanings, for this discussion we will refer to you as the “personal representative”.
How long does it take to Probate and estate?
That depends on if the estate is simple or complex. If the estate is simple and the personal representative works with our office efficiently, most estates can be closed in as little as 5-6 months. Estates can’t be closed for a minimum of 4 months (practically speaking 5), because the law requires a certain amount of time before the estate could be closed. If the estate is complex, it will take longer. 90% of the estates in the San Francisco Bay Area are simple to moderately complex so most estates should be closed well under a year with simple estates much faster.
If you are reading this it is likely someone you loved died. Do you need to talk with us or have an emergency, call 925-953-2024 or click here.
How do I get my inheritance?
The reason for probate is to transfer the assets of a decedent to the decedents loved ones, usually beneficiaries or heirs. Once all of the probate process has been done properly a final petition is made in writing to the Judge and a hearing is scheduled. If there are no mistakes and everything balances, the Judge will approve distribution of the assets of the estate to those entitled to them. Then our office will prepare the paperwork to properly transfer the assets to the rightful heirs.
What if there are capital gains, do taxes have to be paid?
Yes — if the estate had a capital gain on assets after the decedent died, the IRS will require capital gains tax to be paid. Here again, this is very complicated and you will need to reach out to our office to handle for you otherwise you will be personally liable for the taxes, penalties, and interest.
Should I be the personal representative?
That depends on what your relationship was to the decedent. If you are a close family member or trusted relative or friend, then you can be the personal representative. There is a priority list the court will follow if more than one person wants the position. The priority list is found in Probate Code §8461. However, don’t rest easy thinking you have priority.
Because the personal representative gets paid for performing the services, sometimes people try to become the personal representative just for the money. Therefore, if you are a trusted family member (or close friend if not family) and you wish to be the personal representative, or you are listed in the decedents Will, we need to file the probate for you and get the hearing before someone else does. Otherwise you will have to pay an attorney to attend the hearing and make an objection as to why you should be the personal representative. That will cost you money just for not acting timely.
The point is, if you want to be the personal representative, you need to act quickly.
Click here for a Free Quick Help Guide on the basic information we need to help you probate the estate.
Need to talk with a lawyer or have an emergency, call 925-953-2024 or click here.
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