What is Probate and How Can I Avoid It?

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What is Probate?

A “probate” is a court proceeding whereby a deceased person’s estate is administered and the estate’s assets are distributed to the heirs or beneficiaries. Probate is a public court proceeding, meaning that anyone can read the decedent’s will and attend the court hearings for the probate case. A probate of a decedent’s estate generally takes anywhere from 8-12 months to complete, and can take longer. The personal representative of the estate is entitled to statutory fees for their work in administering the estate, as is their attorney. These fees are calculated as a percentage of the appraised value of the decedent’s estate (4% of the first $100,000; 3% of the next $100,000; 2% of the next $800,000; 1% of the next $9 million, etc.).

To initiate administration of the estate, the executor of the decedent’s will, or any interested person, files a petition to administer the estate with the probate court and a date is set for the first hearing. Notice of the hearing is then published in the appropriate newspaper and served on the decedent’s heirs, the beneficiaries of the decedent’s will, and all interested parties. A filing fee is paid and other required documents are also filed with the court.

At the hearing, and upon appointment by the court as personal representative of the estate, the executor or administrator will then begin to administer the estate according to the decedent’s wishes as outlined in the will. Among other things, notice is sent to the estate’s creditors and an inventory and appraisal of all estate assets is undertaken. Once the time for filing creditors’ claims has passed and the estate is ready for final distribution, the personal representative or their attorney will prepare a detailed final account, report, and petition for final distribution.

Probate Is Expensive!

In California, as of 2023, decedents’ estates with assets having a fair market value of $184,500 or more are required to go through probate. The costs associated with probate can be significant. For example, an estate with an appraised value of $600,000 in assets would pay statutory fees to the personal representative and the personal representative’s attorney totaling $30,000, minimum. Additional fees could be collected by the personal representative and their attorney for “extraordinary” services rendered to the estate. Additionally, court fees, publication fees, probate referee fees, and other costs of administering an estate of this size would average around $2,000.

Planning to Avoid Probate

Due to the high cost and time-consuming, public nature of probate, many people plan their estates with probate avoidance in mind. One of the most common estate planning instruments used for probate avoidance is the revocable trust, also known as a living trust or inter vivos trust. Additional estate planning tools that can be used are payable-on-death bank accounts and (more recently) revocable transfer on death deeds. Revocable trusts still offer the most flexibility with probate-avoidance estate planning and are well known and widely used.

Allred Law specializes in crafting custom estate plans to suit every situation. Contact us today so we can help you reach your goals.

Disclaimer: This article is intended to provide general information about estate administration and probate in California and should not be relied upon as a substitute for legal advice about your particular situation from a qualified attorney. Reading this article does not create an attorney-client relationship. Unless and until a formal attorney-client contract/legal services agreement is signed by both you and Allred Law we do not represent you as your attorney.