Probate
If someone dies with a will as the sole instrument of their estate plan — or with no estate plan at all — the person named as executor may face a court process called probate.
We represent executors and personal representatives through that process, from the initial court filing to the final distribution of assets. Our fees for probate are set by California statute, and are listed on our Fees page.
What is probate?
Probate is a court proceeding that confirms a will is valid and oversees the distribution of the estate.
The will is filed with the probate court. An inventory is made of the deceased person's property. Debts and taxes are paid. The will is proved valid. The remaining assets are then distributed to the beneficiaries as the will provides.
If there is no will, the estate still goes through the court, and assets pass to relatives according to California's intestate succession statutes rather than according to the deceased person's wishes.
How long does probate take?
In a straightforward case, at least nine months before property can be distributed to heirs.
The timeline runs roughly like this. It usually takes six to eight weeks from filing the opening petition until the court appoints an executor or administrator — and even where the will nominates an executor, that person has no authority to act on the estate's behalf until the court formally appoints them. The executor then gives creditors four months to file claims against the estate. After that, the court typically takes a further six to eight weeks to issue an order of distribution.
Cases that are less straightforward take longer. Common causes of delay include an improperly filed original petition, a dispute over who should serve as executor, difficulty selling real estate, a dispute about how assets should be distributed, the need to pay estate taxes, or simply a large number of assets to account for.
What does probate cost?
Attorney's fees in California probate are set by statute — California Probate Code section 10810 — rather than by the hour. A court may order higher fees in complicated cases.
The statutory fee is calculated as a percentage of the estate's value: four percent of the first $100,000, three percent of the next $100,000, two percent of the next $800,000, one percent of the next $9 million, and one half of one percent of the next $15 million. For estates exceeding $25 million, the court determines the fee. Our Fees page sets out what this works out to at common estate values.
The executor is generally entitled to the same fee. Executors often decline it, either because they are a family member who would feel uncomfortable accepting payment, or because of the tax consequences of taking it.
One point catches many people by surprise: the estate is valued by its inventory, and the inventory does not subtract debts. If a house is appraised at $500,000, that is the figure used, regardless of what is owed on the mortgage. Statutory attorney's fees for an estate consisting of a $500,000 house and nothing else would be $13,000 — even if the actual equity in the house were a small fraction of that.
There are court costs on top, including filing fees for the initial petition and for the final petition for distribution.
Do I need a lawyer?
You are not required to have one. In practice most executors do, because the paperwork the court requires is detailed and unforgiving, and because an executor who makes mistakes can be held personally responsible for them.
An executor carries real legal duties: to the estate, to its creditors, and to its beneficiaries. Most people serving as executor are doing it once, for someone they loved, at a difficult time. Having someone handle the court process is usually worth it.
Can probate be avoided?
For the person who has died, no — if the estate is subject to probate, it goes through probate.
But it can be avoided in advance. A properly funded living trust passes assets to beneficiaries without probate, which is the main reason most of our estate planning clients have one. Small estates may also qualify for simplified procedures that avoid full probate.
If you are settling an estate now, we can tell you at an initial consultation whether probate is required, and if so what it will involve. If you are planning ahead, our Living Trusts page explains how probate can be avoided altogether.
How we can help
We start with the initial court filing and handle the court process through to distribution. We can also assist with the parts of estate administration that sit alongside probate — managing assets, paying debts, dealing with estate tax filings — so that you are confident in the decisions you make as executor.
We offer a free initial consultation.
Call 707.636.4611 or email info@botzcodylaw.com.