DISCLAIMER: THE FOLLOWING INFORMATION IS NOT A SUBSTITUTE FOR LEGAL ADVICE AND IS NOT A GUARANTEE, WARRANTY, OR PREDICTION REGARDING THE OUTCOME OF ANY LEGAL MATTER. NAKAHARA LAW, A.P.C. DOES NOT INTEND TO CREATE AN ATTORNEY-CLIENT RELATIONSHIP THROUGH PROVIDING THE INFORMATION BELOW.

Question 01

What is Probate?

The word is derived from the Latin word Probarte meaning to test or prove. Today, the word is most commonly used to describe the process of transferring a decedent’s wealth in a court supervised administration.

Question 02

What is the difference between an Executor and an Administrator?

An Executor is a title given to the person who administers or “executes” the provisions of a decedent’s Will. An Administrator is a title given to person who administers a decedent’s estate when the decedent dies without a will. Because of the confusion over these terms, California has adopted a generic term “Personal Representative” to describe both positions.

Question 03

Who are the parties to a probate proceeding?

Generally, the parties to a probate proceeding are the executor or administrator, called the Personal Representative, creditors of the decedent who file a Creditor’s Claim seeking payment of their debt, certain government agencies who are required to be given notice of the probate proceeding, and the beneficiaries who are entitled to an inheritance from the decedent.

Question 04

What expenses does my family have to pay if my property goes through probate?

Generally, court supervised administration costs include court filing fees, legal publication fees, appraisal fees, executor or administrator’s fees, and attorney’s fees.

Statutory executor/administrator fees and attorney’s fees for ordinary services are both fixed by the same formula contained in the California Probate Code and are based upon a declining percentage of the following amounts: (i) the gross value of the total probate assets as of the decedent’s date of death, (ii) plus receipts and total gains on the sale of probate assets, (iii) less losses on the sale of probate assets. See California Probate Code section 10800.

In addition to Statutory Fees, the executor/administrator is entitled to fees for extraordinary services that are not common to all probate estates. Disputes over the validity of the decedent’s will, disputes with a creditor of the decedent’s estate over a debt owed by the decedent, tax audits by the Internal Revenue Service, disputes over title to the decedent’s assets are some examples of extraordinary services. All extraordinary services are generally billed on an hourly basis and must be approved by the probate court before paid. California Probate Code section 10801.

Question 05

Does every decedent’s estate have to go through probate?

No, not all property of a decedent must go through probate. Property can also pass by operation of law, such as joint tenancy and community property with rights of survivorship, by contract naming a designated beneficiary, such as life insurance proceeds, annuity contracts, retirement benefits such as an Individual Retirement Account (I.R.A.), and transfer upon death bank accounts and security (stock, bond, and mutual funds) accounts. There are also summary probate proceedings for estates having a value in California of less than $166,250.00 that are faster and less expensive. California Probate Code section 13100 et. seq. sets out the requirements for transferring property for decedent’s estates of less than $166,250.00.

Question 06

Why do many people try to avoid probate?

Generally, people try to avoid court supervised probate proceedings due to the cost and delays associated with that type of court proceeding.

Question 07

Does California law provide for alternative ways to transfer property without going through probate?

Yes. The following are some common methods of transferring property without going through probate for decedent’s estates in excess of $166,250.00.
a) Community Property with rights of survivorship, California Civil Code section 682.1;
b) P.O.D. Account, California Probate Code section 5140;
c) Joint Tenancy with rights of survivorship;
d) Transfer Upon Death Deed, California Probate Code section 5642;
e) Assets held under contract that designate named beneficiary(ies),
such as a revocable living trust.

Question 08

How long does a court supervised probate take to complete?

Depending on the case load of a particular court, a court supervised probate proceeding lasts approximately twelve (12) to eighteen (18) months from the date a Personal Representative is appointed by the Court, longer if the estate is complicated by tax audits, litigation or other issues. If an estate lasts longer than twelve months (eighteen (18) months if the estate is larger than the U.S. Estate Tax Exemption in effect on the date of the decedent’s death), the Personal Representative must file a Status Report with the Probate Judge to explain the reasons the estate is not completed in twelve months. California Probate Code section 12200

Question 09

What can I do if the person in charge of the probate refuses to answer my questions about delays in closing the estate?

The California Probate Code provides some support. Probate Code §8200 states that an individual in possession of a decedent’s original will must file it either with the county clerk or the person named as the primary executor of the decedent’s will, within thirty (30) days of learning of the decedent’s death.

Probate Code §12202 provides that the heirs of a decedent and beneficiaries named in a decedent’s will have a right to have the Personal Representative appear in court to explain the status of the probate administration and Probate Code section 10950 allows the heirs or beneficiaries to request that the Personal Representative file an accounting that shows an inventory of the estate assets and the receipts and disbursements during the probate proceeding.

Question 10

Can the Personal Representative make distribution of probate assets before the final closing of the probate proceeding?

Yes. California Probate Code section 11620 allows for a Preliminary Distribution of estate assets if certain conditions are met.

Question 11

What happens if I own real property outside of California?

California Probate Courts only have the authority to deal with real estate within the borders of the State of California. If the decedent’ owns property in another state, it may be necessary to open an ancillary probate proceeding in that state. Generally ancillary proceedings are abbreviated versions of the main probate proceeding in the state of the decedent’s residence. Because of this issue, most people who own property in multiple states should consider some alternatives to avoid the ancillary probate proceeding ie. revocable living trust.