What is Probate?
By David R. Baker |
Nobody voluntarily chooses probate. People are too busy or preoccupied with
health or other issues to plan. They pass away without a living trust and their
heirs----usually their children---- find that they can’t sell Mom or Dad’s house
without a court order or can’t transfer Mom or Dad’s bank account without court
approval. Even with a will, they may be forced to file a probate
proceeding.
Alternatives to Probate
Because
probate is expensive and time consuming, a responsible attorney first tries to
determine if there is an alternative to probate. In California, the most common
alternatives to probate are a Spousal Property Petition (if there is a surviving
spouse) or a small estate transfer (if the value of the estate is less than
$100,000). If these and other alternatives to probate are unavailable, then the
only recourse for the decedent’s heirs is to file a probate proceeding.
Cost of Probate
Attorney’s fees and costs are
set by law in California and are based upon the value of the estate. Here is the
statutory fee schedule in California:
4% of the first $100,000
3% of
the next $100,000
2% of the next $800,000
1% of the next
$9,000,000
What Is Probate?
Probate is the
judge-supervised process of paying a decedent’s legitimate bills, inventorying
and appraising a decedent’s assets, and distributing the assets to the
decedent’s heirs or beneficiaries.
Length of
Probate
Most probates take between 6 months and one year. We
take pride in the fact that most of our probates are handled without a hearing:
in the S.F. Bay Area, this is done through a system of “pre-granting,” i.e. the
judge is willing to sign the proposed order without an attorney making a court
appearance.
About the Author
David R. Baker graduated from Hastings College of the Law in San
Francisco in 1979 and passed the California State Bar Exam the same year. The
present focus of his practice is Probate, Decedents Estates, and Living Trusts.
He can only advise on matters relating to California law and California legal
proceedings. His website is: http://www.california-probate-attorney.com/
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