Although not necessary in every single situation, probate is generally required in California. In Orange County, the value of most estates is greater than $166,250, which is the maximum amount an estate can be valued at in order to utilize simplified procedures to avoid probate court.
An example of assets that automatically transfer is real estate owned by a married couple, in which case the property would transfer to the surviving spouse. Another example is a life insurance policy going automatically to the named beneficiary.
In these cases, a simple estate may be settled solely by the executor. For instance, in a situation where the estate’s assets are large enough to cover any debts, there are no legal threats, disputes, or contests to the will, and no business matters involving the estate, the executor could avoid probate court. The fact of the matter is that most estates require an attorney’s assistance, even if the decedent did extensive planning before their passing.
Unfortunately, family members may end up fighting after the loss of a loved one, especially when assets such as property, investments, business holdings, and other valuables are at stake. Even when a will or trust has been thoughtfully and legally crafted, a family member or other beneficiary may contest it.
The California Probate Code states that an executor must file a will within 30 days of an individual’s passing, and if they fail to do so, they may accidentally waive their rights as executor. In the case of a small estate, an executor must wait until 40 days have passed from the date of the decedent’s death to file an affidavit.
Each probate case has unique circumstances, so the time varies according to the details of the case. Creditors have four months to make a claim against the estate; this means the case must stay open for this amount of time at a minimum. Legally, the final distribution must be filed within 12 to 18 months if federal tax returns are necessary, but the timeline increases if the will is contested or any other litigation is considered.
Ultimately, the timeline depends on the specifics of each situation. If the process does not present any unexpected challenges, then the estate can be probated quickly and efficiently. Any contests or disputes, however, can cause delays that are only prolonged without the skills of a seasoned probate attorney.
A dedicated attorney with knowledge of estate law, including elder law, wills and trusts, and probate litigation, will guide you through the process by doing the following:
- Determining if the deceased passed away with a valid last will and testament
- Investigating any life insurance policies
- Property appraisal
- Identifying and distributing assets
- Paying off bills and debts associated with the deceased
- Investigating and paying off any estate or inheritance taxes
- Identifying any income tax discrepancies and resolving them as necessary
- Managing any checking accounts under the decedent’s name
- Preparing and filing required documents with the probate court
- Transferring assets in accordance with the decedent’s will to the appropriate parties, such as children, heirs, and other beneficiaries
The cost of probate in California depends on the efficiency of your attorney and the specific details of your case. A simple estate with no disputes or complications can still require court fees of five to ten percent of the estate’s value.
When a will is contested, or any other issues arise with family members, heirs, or beneficiaries, these costs can increase exponentially. An attorney with extensive experience in estate law can minimize not only the amount of time but also the associated costs that accompany a complicated probate case.
Additional fees at the beginning of the probate process are as follows:
- A $350 fee to file for probate
- $350 to $500 to publish a notice of death in the local newspaper
- $200 to $350 for any additional petitions and objections filed with the probate court
- Any costs associated with a probate bond, if ordered by the court
- Any costs associated with the appraisal of the estate’s non-monetary assets