THE PROBATE PROCESS SIMPLIFIED
Probate (“To prove the will”) is the process by which the assets of a decedent (person who has passed away) are passed to his or her beneficiaries or heirs.
The probate process applies to situations where the decedent dies with a will (testate) or without a will (intestate). Where a decedent dies testate, the executor nominated in the will is usually appointed as executor and Letters Testamentary are issued giving the executor the authority to settle the decedent’s affairs. Where a decedent dies intestate, a family member, relative, friend, or even a creditor, may petition the court to be appointed administrator. If more than one person seeks nomination, the California Probate Code provides an order of priority of appointment. The appointed administrator is issued Letters of Administration giving him or her the authority to wind up the decedent’s estate.
Bonds. Executors and administrators are often required to be bonded unless the will waives the requirement of a bond. A bond generally requires a yearly premium to be paid, a credit check, and most bonding companies will require an attorney to be on board.
Creditors. All reasonably ascertainable creditors of the decedent must be given notice of the proceedings. Once notice is given, the creditor will have a certain length of time in which to file a “creditor’s claim” against the estate. If a creditor does not file a claim within the specified time period that creditor will be lose all right to seek restitution in the future.
Inventory and Appraisal. All of the decedent’s probate estate must be inventoried and appraised as to the date of death value. Some assets, such as checking and savings accounts are appraised by the executor or administrator. Often, however, the appraisal process requires the expertise of a probate referee.
Accounting. Finally, an accounting of the estate must be done, unless waived by all beneficiaries. Usually, the accounting will be contained within a petition for final distribution.
Fees. The amount an attorney can charge for handling a probate is limited by Probate Code 10801. Fees pursuant to this section are called “statutory fees.” These fees are calculated as 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. In addition to statutory fees, an attorney may be allowed “extraordinary fees” where the attorney spends an inordinate amount of time on a more complicated case, but these fees have to be approved by the court. Additionally, executors and administrators are entitled to compensation following the same statutory guidelines above.
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