Probate & Estate Administration
|When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If the assets of the deceased were owned through a well drafted and properly funded living trust however, it is likely that no court-managed administration is necessary. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
The probate process for each estate is unique, but usually involves the following steps:
FREQUENTLY ASKED QUESTIONS
What happens if someone objects to the will?
An objection to a will, also known as a “will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.
In order to contest a will, one has to have legal “standing” to raise objections. This usually occurs when, for example, children are to receive disproportionate shares under the will, or when distribution schemes change from a prior will to a later will. In addition to disputes over the tangible distributions, will contests can be a quarrel over the person designated to serve as Executor.
Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are “non-probate assets” and do not go through probate. These include:
Do I get paid for serving as an executor?
Executors are reimbursed for all legitimate out-of-pocket expenses incurred in the process of management and distribution of the deceased’s estate. In addition, you may be entitled to statutory fees, which vary from location to location and on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care. It is advised that the Executor retain an attorney and an accountant to advise and assist him with his or her duties.
How much does probate cost? How long does it take?
California Probate Code §10800 provides what the executor or personal representative is entitled to & §10810 provides what the attorney representative is entitled to for ordinary non disputed matters. Their combined fees will depend on the size of the estate, but may be estimated at approximately 10% of the estate’s value.
Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include Executors’ fees, attorneys’ fees, accounting fees, publication fees, court fees, appraisal costs, and surety bonds. These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.