Probate Law

  • Estate Administrations

  • Trust Administrations

  • Trust Litigation

  • Probate Litigation/Will Contests

  • Conservatorships

  • Guardianships

  • Will/Trust Drafting

Probate for Out of State Families

Out of state families who have lost a loved one can rely on attorney Beall to perform all duties and tasks required under California probate law should they choose to nominate a personal representative to administer the estate.

In most cases, no presence in California is required. Attorney Beall can handle everything without the cost and hardship of travel for the family.

Attorney fees are set by statute and are paid from estate assets only after court approval at the end of the probate process.

man with pillers

What is Probate:

Generally speaking, probate is the court procedure by which a will is proved to be valid or invalid, though in common usage this term has been expanded to generally refer to the legal process wherein the estate of a decedent is administered. Generally, the probate process involves collecting a decedent’s assets, paying decedent’s valid debts through the creditor claims process, paying taxes and distributing  property to heirs. These activities  are carried out by the executor or administrator of the estate, under the supervision of the probate court.

What is a Testate Estate:

A testate estate is an estate where the decedent left a valid will prior to death.

What is an Intestate Estate:

An intestate estate is an estate where a decedent passes away without a valid will.

What is a Personal  Representative of an Estate:

A personal representative is an executor or administrator of an estate.

What is an Executor:

When the decedent dies leaving a valid will, the will usually nominates someone to be the executor of the estate. The executor is the person responsible for managing the administration of the estate. For estates larger than the statutory minimum ($150,000), the nominated executor needs to petition the probate court for official appointment to serve as executor.

What is an Administrator:

If a decedent dies without having a valid will and the estate is larger than the statutory minimum, someone needs to petition the probate court to be appointed the administrator of the estate. The administrator performs the same functions as an executor. Both an executor and administrator are known as personal representatives of the estate.

The Probate Code provides a hierarchy of those eligible to be appointed administrator of an intestate estate. In general, those with priority for appointment as personal representative of an intestate estate are as follows: surviving spouse or domestic partner; children; grandchildren, other issue; parents; brothers or sisters; issue of brothers or sisters; grandparents; issue of grandparents; children of a predeceased spouse or domestic partner; other issue of a predeceased spouse or domestic partner; other next of kin; parents of a predeceased spouse or domestic partner; issue of parents of a predeceased spouse or domestic partner; conservator or guardian of the estate; public administrator; creditors; any other person.

General Stages of the Probate Process:

The probate process begins with the filing of the petition in the probate court. An initial hearing date is set for approximately six to eight weeks from the date of filing. During the period after filing the petition but prior to the hearing, the petitioner is required to publish legal notice of the petition and to give written notice to interested parties. After the required notices are served, the publication made and any court inquiries answered, a personal representative is appointed by the court and the court issues either Letters Testamentary or Letters of Administration.

The personal representative is then responsible to marshal assets of the decedent, open an estate account, complete and file an inventory and appraisal, give written notice to creditors, accept or reject creditor claims, pay valid debts,  sell estate assets that will be sold, pay taxes, then file a final accounting of the administration and a petition for final distribution. This is not a complete list of tasks but is meant to give an overview of the tasks a personal representative will be responsible to carry out.

Length of Time for the Probate Administration:

A probate administration in California takes approximately at least a year. Depending on the time needed for sales of estate property, the process could take longer. With statutory and court timelines, the minimum time to complete a probate is approximately a year.

Fees in Probate:

Fees for attorneys and personal representatives are set by statute and are not payable until the end of the probate process with court approval. These fees are paid from estate assets. The current fee schedules for attorneys and personal representatives are based on the gross size of the estate and are as follows:  4% of the first $100k of the estate; 3% of the second 100K of the estate;  2% of the next 800K of the estate up to a million dollars; and 1% thereafter. For example, an estate worth $500,000 would have statutory fees for both the attorney and personal representative of  $13,000.

The calculation is as follows:

4% of $100,000                        4,000
3% of next $100,000               3,000
2% of next $300,000               6,000
Total:                                       13,000

Costs of the Probate Administration:

The costs involved in the probate process generally include: the initial filing fee (approximately $490); certified copies (approximately $50); publication costs (approximately $500); probate referee costs (depends on the size of the estate, 1/10 of 1%).

What is a Conservatorship:

A conservatorship is the legal mechanism which enables a probate court to appoint a guardian or protector to manage the financial affairs and/or daily life of another person who is unable to take care of themselves due to mental or physical limitations or old age. A person under conservatorship is known as the conservatee. The court appointed protector or guardian is known as conservator. Someone can be the conservator of a person’s estate (financial affairs) and/or the conservator of the person (wherein the conservator takes charge of overseeing the daily activities of someone, such as health care or living arrangements).

What is a Guardianship:

Very similar to a conservatorship, a guardianship is the legal mechanism which enables a probate court to appoint a guardian or protector to manage the financial affairs and/or daily life of another person who is a minor. A person under a guardianship is known as the ward. The court appointed protector or guardian is known as the guardian. Someone can be the guardian of a minor’s estate (financial affairs) and/or the guardian of the person (wherein the guardian takes charge of overseeing the daily activities of a minor, such as health care or living arrangements). An example of a situation wherein a guardianship would be necessary would be when a minor loses a parent or parents and the minor inherits assets that need to be properly managed and protected and/ or when someone needs to be appointed to make health care decisions or living arrangement decisions for a minor.