Probate is a court-supervised process for transferring a deceased person’s assets to one’s heirs. If you had no Will upon death, the Court appoints an administrator to be in charge and will determine who the beneficiaries will be according to law. If you had a Will at the time of death, your executor would be approved by the Probate Court, take charge of your assets, pay your debts and, after receiving Probate Court approval, distribute the rest of your estate to your beneficiaries.
The Probate process has advantages and disadvantages. The Probate Court is accustomed to resolving disputes about the distribution of assets fairly quickly through a process with defined rules. In addition, the Probate Court reviews the personal representative’s handling of each estate, which can help protect the beneficiaries’ interests. Thus, especially when the risk of conflict exists, having judicial supervision of the process can sometimes be valuable.
However, the system comes with a price. The price is time, money and privacy. One disadvantage, is that Probates are a public record for anyone to see. Your estate plan, your debts, the value of your assets and identities of the beneficiaries will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate will cost much more than the management and distribution of a comparable estate under a Revocable Living Trust. Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust; a minimum of six months and often average closer to a year.
Not all Living Trusts escape Probate Court processes. There are number of instances that can occur whereby a Living Trust is moved into the Probate Court system in order to determine or resolve problems or conflicts.
Probate Court Costs
The Attorney’s fees and executor fees (both are entitled to the same amount) are established in the California Probate Code. 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. Supplemental fees can be ordered by a court for services the Probate Court determines, at the request of the attorney, to be extra-ordinary services.
The value of the estate is determined, in general, by the gross value (not net) of the assets in the estate. Debt, loans, and mortgages are not deducted from the value calculation.
|Gross Estate Value||Statutory Fee|
The initial filing fee for a probate petition is about $395. There are similar filing fees throughout the process of the Probate.
Estates are appraised by probate referees, who are appointed by the Court to determine the fair market value of the asset. They are entitled to a 0.1% fee for the services based upon a percentage of the value of the appraised value.
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