Encinitas,
  San Diego County
Practice Areas - Probate

Named Executor of a Will?

If the estate contains probate assets, you will likely need a court supervised Probate proceeding unless one of the Avoiding Probate alternatives applies to your matter. 

If you have been named Executor of a Will and want to act as Executor, you must first file the Will and a Petition for Probate with the Court.  If the Petition for Probate is approved, the Court will issue an Order and Letters Testamentary.  These documents will provide the Executor with the legal authority to carry out the probate administration.  Obtaining an Order and Letters Testamentary will only occur after a Petition for Probate has been filed and a noticed hearing has occurred.

After the Petition for Probate has been granted, the Executor must provide proper notice of the probate administration.  Once the Notice to Creditors period has passed, a Report and Accounting to the Court must be filed.  An appraisal from a Probate Referee will likely be required.  The Report and Accounting will require a new noticed hearing.  When an Order is obtained after the hearing, the Executor will make distributions.  Many Executors retain a reserve for potential tax liabilities and distribute the amount later after it is established there are no more debts of the estate.

 

What are the Responsibilities of an Executor of a Will?

Generally speaking, an Executor of a Will has the duties of marshaling (gathering & managing) the assets of the Estate, paying any outstanding debts to Creditors (including taxes owed to the government) and distributing the Estate to the Beneficiaries after an accounting has been approved by the Court.  These are time consuming and detail oriented tasks.  Excellent records must be maintained by the Executor to do their job properly.    

 

Does the Executor Need to hire a Probate Attorney?

An Executor of a Will is not required to hire a Probate Lawyer.  However, a more appropriate question may be, “Should an Executor hire a Probate Attorney?”  Only the Executor can answer that question, but the Executor should realize that they are going to be the party that gets sued by Creditors and Beneficiaries if the Probate is not administered correctly.  Further, an Attorney’s compensation is statutorily set by the Probate Code to be paid from the Estate.  This means the Executor does not have to personally pay for the Attorney, the Attorney’s compensation will come from the Estate when it is finally settled.

What if there is no Will?

When there is no Will the estate is considered Intestate and must still pass through Probate.  Rather than an Executor, there will be an Administrator.  The Probate Code sets out how the estate will be distributed, i.e. who the beneficiaries will be.  The Administrator's duties are very similar to an Executor's with a few small exceptions because there is no Will.  

What is Probate? 

Probate is the Judicial procedure by which a decedent’s Estate is administered.  The Probate Court’s job is to supervise, establish that your Will is valid (if you have a Will), make sure your assets are properly accounted for, that creditors get paid (if you have outstanding debts) and the balance of your Estate reaches your Beneficiaries.  The Probate process is governed by the California Probate Code

 

Why do people have to go through Probate? 

A person's Estate must go through Probate in order to transfer Title of their Assets to their Beneficiaries.  The key is transfer of Title.  One can only begin to imagine the confusion that could result without an official process that transferred Title.  For example, a bank with a decedent's bank account valued at $100,000 could have 7 different individuals claim that Title to the account belonged to them and should be transferred to their name.  With Probate, the Probate Court provides a final and reliable statement of who Title is to be transferred to.

 

When is Probate required?

Probate is required when a person dies Intestate (without a Will) and even when they die Testate (with a Will) in most cases.  There are some exceptions, see Avoiding Probate. However, in most cases even if you have a Will your Estate will have to pass through Probate in order to officially transfer Title of your Assets.  
 


Why do people want to avoid Probate?
 


In addition to not wanting their Will to become a public record and not wanting the Probate Court involved with the distribution of their Estate, the primary reasons people want to avoid Probate are the length of the process and higher costs associated with the Probate. 


 
 

How are Probate Fees calculated?  

California Probate Fees are established by California Probate Code 10800.  The Fees are calculated by different percentage values assigned to different levels of the Estate’s financial value.  The chart below illustrates the concept.  Keep in mind these Fees are calculated based on the gross value of the Estate.  This means, for example, if your entire estate consisted of a house worth $750,000, but you only had $450,000 of equity in the home, the Probate Fees would still be based on $750,000, the gross value of the estate (not taking debt into account). 

Estate Value Statutory Fee
$100,000 $4,000
$200,000 $7,000
$500,000 $13,000
$1,000,000 $23,000
$1,500,000 $28,000
$2,000,000 $33,000
$5,000,000 $63,000


Are there additional costs associated with Probate? 

Yes.  There are filing Fees with the Probate Court, potential appraisal costs and Probate Code § 10811 also permits the Probate Court to grant additional Fees for Extraordinary Services.

 

Is there any benefit to my Estate from going through Probate? 

Yes.  There is judicial supervision of your Estate’s administration from the Probate Court.

 

Are there benefits of avoiding Probate? 

Yes.  Avoiding Probate will likely save money, time and keep your personal affairs out of the public record.  You gain more control and reduce Estate Administration Fees. 

 

How can you avoid Probate? 

There are several Probate Alternatives.  A discussion of the primary alternatives to Probate are discussed on the Avoiding Probate page.  However, many of these methods require estates to be under a certain financial threshold.  The proactive approach is to explore whether creating a Trust would assist you accomplish your estate planning goals while avoiding Probate.


Click on the following links to learn more about Wills, Trusts, Health Care Directives, Powers of Attorney or Trust Administrations.  Please review the Disclaimer regarding the content provided on DonnoeLaw.com.


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