An overview of probate for Californians

For most Americans, probate is a process that comes up infrequently. Generally speaking, this is a good thing, because probate is only necessary when someone has passed away.

So what is probate? Probate is a court case concerning the property of someone who has died. Even when the decedent left a will, the case must typically go through probate in California - although there are alternative estate planning strategies that can avoid probate. If you have recently lost a loved one, knowing a little more about the probate process and where to turn to for the right legal help can be extremely important.

Executor or administrator distributes property under supervision of probate court

When someone dies, the property they leave behind is known as an "estate." If the individual died with a will, a court appointed "executor" will be in charge of managing the estate. If the person died without a will, an "administrator" handles the estate. The executor or the administrator is responsible for paying debts of the decedent and expenses of the probate case out of the estate, and then distributing the remaining assets among those who are legally entitled to inherit them, whether under the terms of a will or under state law. The probate court will monitor the actions of the executor or administrator.

Smaller estates - those whose total value does not exceed $150,000 - that do not include real property (like a house) may not have to go through probate court in order to get title to the property transferred to the proper recipients. However, even the simplified process requires special paperwork; this can be obtained from most probate lawyers.

A typical probate case takes between nine months and a year and a half in California. In some instances, particularly those in which there is a dispute (for example, a family member contesting the validity of a will), the process can take even longer.

Probate can not only be a drawn out process; it is also typically quite expensive. Fees for probate in California are determined by the court based on a statutory formula. The gross value of an estate (which can be far more than you actually receive as a beneficiary) determines how much you will pay your attorney and the executor; there will also be court fees. To put the costliness in perspective, probating a house worth half a million dollars would cost almost $30,000 in fees paid to the attorney, the executor and the court.

Avoiding probate

In some cases, it is possible to avoid probate through careful estate planning. By transferring assets to certain types of trusts, owning assets in joint tenancy with the intended recipient, holding accounts with a named payable-on-death beneficiary and leveraging other estate planning strategies, individuals who wish to save their loved ones from the hassle and expense of probate can take care of the legwork on their own in advance.

Of course, many individuals do not have a comprehensive estate plan in place at the time of their death that completely eliminates the need for probate, and for some estates, it is simply not workable to plan around probate.

Get help from a California probate and estate planning attorney

If you have lost a loved one and need help navigating the probate system, an experienced attorney can guide you through the process. Alternately, if you want to explore ways to save your family from having to go through probate, the time to put an estate plan in place is now. Contact a California probate and estate planning attorney today to learn more.