Burlingame Probate Attorney

California probate is not as arduous a process as in some other states. First, it must be determined whether probate is necessary at all. If the deceased owned assets in joint tenancy, community property with his or her spouse, or had a living trust, the assets are not required to go through probate. Payable-on-death benefits are also exempt from probate. If the total value of the estate (any assets which cannot be transferred to a beneficiary in any other manner) is $150,000 or less, inheritors may not have to go through probate—they can claim the assets with an affidavit or go through a streamlined “summary” probate process.

If probate is required, an individual must come forward to start the process. If the decedent left a will and named an executor, then the executor would be the person to come forward and begin the probate process. If there is a will, it must be shown to be valid. Once this is done, the court will issue Letters Testamentary which officially grants the executor authority over the estate. If no will exists, a family member usually asks the court to be appointed as the administrator of the estate—a job which is likely to last from six months to two years.

The executor will file the will, along with a document known as the “Petition for Probate” with the probate court in the county where the decedent resided upon his or her death. There will be a filing fee of roughly $435—although some counties charge more or less. It may be necessary to file other forms. Once all forms are filed, then formal notice must be provided to all beneficiaries, family members, and creditors. Once appointed, the executor must inventory all assets belonging to the decedent, apply for a taxpayer ID number for the estate, and open a bank account for the estate. The inventory and appraisal of all property that will go through probate must be filed with the court.  In most cases, the executor has the legal authority to sell property from the estate (other than real estate), pay taxes for the estate, and approve or reject claims from creditors.

The executor must keep all the assets associated with the estate safe (insured, maintained, and safeguarded from theft). The executor is responsible for filing tax returns on behalf of the decedent and for the estate. After sending a “notice to creditors,” creditors have only four months to come forward with a claim. While the executor will simply pay all outstanding bills in most cases, formal creditor claims are possible. If the decedent did not leave sufficient assets to cover all creditors and expenses, the law provides an order for claims to be paid from estate assets.

While probate attorneys in most states either charge a flat fee for probating an estate or charge by the hour, in the state of California, probate lawyers are entitled to a statutory fee—a percentage of the value of the assets involved in the estate. Probate attorneys are entitled to four percent of the first $100,000 of estate assets (gross value), three percent of the next $100,000, two percent of the next $800,000, one percent of the next nine million, and .5 percent of the next fifteen million. For any estate worth more than $25 million, the court will determine a “reasonable” amount for probate attorney fees.