California Probate

Probate is a lawsuit you file against yourself,

at your own expense,

to protect your creditors and disgruntled heirs. -Peter Parenti

California Probate

Probate is a legal proceeding that is used to wind up a person's legal and financial affairs after death and make sure that the decedent's assets are transferred to the proper people, including creditors and beneficiaries. In California probate proceedings are conducted in the Superior Court for the county in which the decedent lived, and typically take 12-18 months from the date of death to conclude. In unusual or contested cases, probates can take years to wrap up.

EXPENSES OF ADMINISTRATION

To initiate a probate, papers must be filed in the Superior Court. In addition to these fees and the compensation paid to attorneys, executors and the probate referee, there are appraisal fees, publication costs, and miscellaneous fees charged by the county. A typical estate might incur $2,000 to $5,000 in court costs and other mandated fees.

FEES & COMPENSATION

California Probate Code section 10810 sets the maximum statutory compensation that attorneys and executors can charge for the normal services required in a probate. Attorneys and executors are generally entitled to the same fee. Additional fees can be ordered by a court for extraordinary services rendered and in more complicated cases. The fees are four percent of the first $100,000 of the estate, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9,000,000, and one-half percent of the next $15,000,000. For estates larger than $25,000,000, the court will determine the fee for the amount that is greater than $25,000,000. Here are some examples of this fee structure applied to estates of various sizes.

Value of Estate	Attorney's Compensation	Executor's Compensation	Probate Referee's Fee	Total Compensation
$100,000	$4,000	$4,000	$100	$8,100
$200,000	$7,000	$7,000	$200	$14,200
$300,000	$9,000	$9,000	$300	$18,300
$400,000	$11,000	$11,000	$400	$22,400
$500,000	$13,000	$13,000	$500	$26,500
$600,000	$15,000	$15,000	$600	$30,600
$700,000	$17,000	$17,000	$700	$34,700
$800,000	$19,000	$19,000	$800	$38,800
$900,000	$21,000	$21,000	$900	$42,900
$1 million	$23,000	$23,000	$1,000	$47,000
$2 million	$33,000	$33,000	$2,000	$68,000
$3 million	$43,000	$43,000	$3,000	$89,000
$4 million	$53,000	$53,000	$4,000	$110,000
$5 million	$63,000	$63,000	$5,000	$131,000

VALUATION OF A PROBATE ESTATE

Probate includes all property held in the name of the deceased person. It does not include property held in joint tenancy or held in trust or that is subject to a beneficiary designation, POD, TOD or other contractual obligation for transfer upon the death of someone. The value of the individual assets that constitute the probate estate is the fair market value as determined by a probate referee, who is appointed by the Court to determine the fair market value of the assets. Note that for probate purposes, the fair market value includes mortgages and other debts, which can result in an appraisal of the property that is higher than the equity that the deceased owned in the property. Probate referees receive a fee based on .1 percent of the assets that have been appraised.

PROS AND CONS OF PROBATE

The cost is usually much higher than would be required for the administration of a living trust for an estate valued at the same amount. It usually takes longer to probate an estate than to administer a trust. The proceedings are controlled by a judge, who can decide disputes between heirs or between the heirs and the executor. However, most estates don't need the supervision of the court unless disputes occur. Creditors are required to submit their claims against the estate within a four-month period, provided they have been notified of the probate. The executor is required, in most cases, to prepare an accounting and report of the executor's activities.