Probate laws in california

State-By-State Probate Laws

Skip to content. Probate is the formal legal process that gives recognition to a will and appoints the executor or personal representative who will administer the estate and distribute assets to the intended beneficiaries.

The laws of each state vary, so it is a good idea to consult an attorney to determine whether a probate proceeding is necessary, whether the fiduciary must be bonded a requirement that is often waived in the will and what reports must be prepared.

Most probate proceedings are neither expensive nor prolonged, which is contrary to the claims of many vendors selling living trust and other products. The basic job of administration and accounting for assets must be done whether the estate is handled by an executor in probate or whether probate is avoided because all assets were transferred to a living trust during lifetime or jointly owned.


Many states have simplified or streamlined their probate processes over the years. In such states, there is now less reason to use probate avoidance techniques unless there are other valid reasons to continue to minimize probate. In planning your estate, more important than minimizing probate is minimizing the real issues that can make probate difficult, such as lawsuits by heirs.

The living trust is often marketed as a vehicle that allows you to "avoid probate" upon your death. Probate is the court-supervised process of administering your estate and transferring your property at death pursuant to the terms of your will.

Probate is rarely the calamity naysayers claim. In addition, many types of property routinely pass outside of the probate process, even without the cost of establishing a living trust.

Such property includes life insurance or retirement plan proceeds, which pass to a named beneficiary by designation rather than pursuant to your will, and real estate or bank or brokerage accounts held in joint names with right of survivorship. While it is true that the property passing under the terms of a living trust upon your death will "avoid probate," it should be noted that there may or may not be actual value in that result.

Probate laws are different in every state. In some states there are statutorily mandated court or attorney fees while in others those fees may be minimal. Many states have expedited or simplified court proceedings that are efficient and inexpensive for small or simple estates.

A properly drafted will in many states can eliminate some of the steps otherwise required in the probate proceedings. In addition, much of the delay and red tape customarily associated with probate is a result of tax laws and tax filing requirements, which cannot be eliminated through a living trust and the avoidance of probate.

Finally, a living trust can almost never totally avoid probate, and a simple will is needed to "pour over" to the trust any property that has not been transferred to the trust during your lifetime. Property that passes at death through a revocable living trust must be transferred to the trust, administered by a trustee who may or may not charge fees, and then transferred out of the trust to the beneficiaries.

There may be other costs, such as real estate transfer taxes or fees, depending upon the jurisdiction. The costs associated with these steps and the costs associated with tax filings are often ignored by living trust marketers.

A comparison of the costs of probate and those of a living trust should be made on a case by case basis. Living trusts, in fact, have great value as part of estate planning, but not necessarily to avoid probate.

A living trust, if properly prepared and administered, can be a very effective tool to manage assets in the event of illness, disability or the effects of aging. In light of the aging population, the use of living trusts to minimize the risk of elder financial abuse and address similar issues, should be an important consideration in an estate plan.

Search ABA. Close Search Submit Clear. What is Probate? In planning your estate, more important than minimizing probate is minimizing the real issues that can make probate difficult, such as lawsuits by heirs Should You Avoid Probate?Suite Los Gatos, California Probate is the legal process of transferring a decedent's estate to the rightful heirs of the estate.

The probate process involves 1 collecting and identifying the deceased person's property, 2 paying any debts and taxes, and 3 identifying the proper heirs and distributing the estate property to them. While the court oversees this process, in most cases the work is done by the executor or the administrator of the decedent's estate with the help of an attorney.

If a person is named as the executor of the estate in the decedent's will, a court hearing to establish the validity of the will must be held before he or she can legally act on behalf of the estate. If there is no will and a person wants to act as the administrator of the estate, he or she must apply to the court and be confirmed before taking any action in connection with the estate.

Anyone taking actions involving the estate before formal appointment by the court may be personally liable for those acts. Generally, the rules regarding probate are found in the California Probate Code, the local rules for each superior court in the State of California and various tax codes and regulations. Each task in the probate process must be performed in accordance with the requirements of California law and the various tax rules.

In many cases, the decedent's estate consists of at least some property that is not subject to probate. Life insurance, for example, usually passes directly to the named beneficiary without court confirmation. Property held in joint tenancy may also pass directly to the surviving joint tenant.

Similarly, if the deceased person had created a "living trust," assets held in the trust are usually not subject to probate. A bank account may also designate a death beneficiary. These examples assume that there is no dispute over the named beneficiary or the manner in which title is held.

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If there is a dispute and a civil action is filed by an individual, the court will determine the rightful owner of the property. In certain circumstances, some or all of the decedent's property may qualify for a "summary probate" or "set-aside proceeding. For example, if all of the decedent's property goes to the surviving spouse, a summary probate proceeding can be used where a "spousal property petition" is filed with the court seeking court confirmation that the surviving spouse owns the property.

This proceeding can take as little as 30 days.

Wills, Estates, and Probate

While these procedures avoid the court proceedings of a full probate, this does not mean that the estate will avoid federal estate tax, income tax, or inheritance taxes.

And, even if these methods are used, the decedent's debts must still be paid. Finally, even if a summary proceeding is available, there may be important reasons for deciding to proceed with a formal probate instead of electing a summary proceeding or a set-aside proceeding. See Benefits of Probate below.

In all cases, you should consult with an attorney before you take any steps to transfer a decedent's property without a court proceeding.

In many instances, a person dies without leaving a will. When this occurs, the decedent is said to have died "intestate" and the heirs to the estate are determined by California's laws of intestacy. The laws of intestate succession determine how the estate will be divided based on a person's relationship to the decedent, e.

Probate will still be required unless specific property of the estate is not subject to probate, such as life insurance, etc.

probate laws in california

If the deceased person did not leave a will and a formal probate is required because of the nature and size of the assets, the court will appoint an administrator to handle the probate proceeding. In most cases, the court will appoint the decedent's closest relative to act as the administrator.

Despite the negative image of probate, probate proceedings do provide some important benefits.

Probate Estate Laws in California

There are some situations where, although formal probate is not required, it may nevertheless be advisable to elect to proceed with probate.

In many cases, there are tax advantages to receiving property through probate as opposed to being received by way of joint tenancy or a gift made prior to death.

Property obtained through probate almost always receives a "step-up" in the tax basis to the date of death value. This often results in a substantial capital gains tax savings on the sale of the property. Further, if there are creditors' claims against the estate, it may be beneficial to have probate court supervision so that the validity and amount of the claims can be determined.The probate process in California can be somewhat complicated.

In addition, California offers many different processes to administer a probate estate, and with each of these processes there are many steps. Our California Probate FAQs page is divided by topic into sections to make it easier to find answers to your questions.

Completing a California probate, without professional help, can be quite an undertaking. Full probate takes, on average, months to complete. This means months of document preparation and case management. That is quite an undertaking for a layperson without professional help. Most courts in California are understaffed and short-handed.

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This results in long lines at the self-help centers, requiring consumers seeking help to arrive early and wait hours before the doors open if they want to get in and be helped.

You can imagine how many trips you might have to mak eover a month probate process! Our services incorporate convenient, online interviews that our clients can quickly complete without having to take time off work. They offer limited direction regarding document preparation, and you must prepare the documents yourself! As a courtesy, in most situations we file your documents with the court, schedule required hearings and manage the case until it is finished.

We partner with our clients through every step, making it easy and stress-free for our clients. Alameda Superior Court Website. Online Probate Examiner Notes. Alameda County Probate Referees.

During this time we have helped thousands of customers just like you file and successfully complete California probate. Unlike many other companies who hide in internet obscurity, we provide our toll-free and local telephone numbers as well as our address on our website. We are not attorneys, and we do not offer legal advice; however, we do provide exceptionally high-quality probate help and legal document preparation services unsurpassed by any other company on the internet, and we take pride in our long-term reputation.

Our goal is to keep our fees low, without sacrificing service. With California probate, the statutory fees attorneys can charge are outrageous and often do not match the services provided or work involved.

How Much Does Probate Cost in California? - RMO Lawyers

Our probate calculator will tell you exactly how much you will save as compared to hiring an attorney. We encourage you to price shop; however, keep in mind that price is not everything. We will make sure your hearing is scheduled and adequately noticed.

We will let you know what steps we are taking as we proceed through the process and what future actions will be needed. Remember, court proceedings are not the same in every county. We often hear from potential customers how they have downloaded the required court forms, failing to realize that those forms will not be sufficient to approve their probate or complete their case.

Sadly, months later we often hear from these same people who have made a mess of probate and now need help to fix things. Remember, fixing things always costs more!When a person dies without a will in the State of California, they die intestate.

Who gets what under California intestate succession laws depends on which of the closest relatives survives the decedent at the time of death. If married at the time of death, distribution of assets depends on the title of the asset. If not married or in a domestic partnership at the time of death, the estate gets distributed:. Not all property passes through succession in California when a person dies without a will. If a person dies without a Will then a spouse, parent or issue, petitions the court to get appointed Administrator of the estate.

Many celebrities have died without a Will. An heir must manage probate that could be avoided with estate plan documents. When we die without a Will, it results in the expense of probate.

It could also be a long time before inheritance is received. Probate is a legal process to settle the estate of a person who died. The way to avoid probate in California is to create a living trust and other estate plan documents. That way, we decide who gets what when we die. It also means we can avoid a conservatorship.

The information contained on this page is for general information only. Always consult with an attorney for legal advice. Our team speaks the language of probate. We understand the rules of engagement with the Probate Court and collaborate with the probate attorneys to ensure a smooth transaction.

It is not uncommon that we never meet face to face.

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She has managed a successful real estate business since January As an Independent Broker, Kathleen has no loyalty to a brokerage. Kathleen is the sole decision-maker for Need Probate Help. She owns the independent power to do things for her clients she got prevented from doing when affiliated with a big box brokerage. Page Contents. You may make other uses of the content only with the written permission of the author on payment of a fee. Specialized Probate Team Our team speaks the language of probate.

Open toolbar. Original content here is published under these license terms:. License Type:. License Abstract:. You may read the original content in the context in which it is published at this web address.Probate is the legal process in which heirs and beneficiaries receive their inheritance from a deceased person.

Probate law in California controls how the probate process is conducted. It also aims to make sure that people to whom the deceased person owed money have a chance to collect their debts, if funds are available.

You might have read in the news about years-long disputes over the estates of deceased people, but cases like that are the exception, not the rule. Probate law in California is not that complicated.

Probate is only complicated enough to require a lawyer if the deceased person was very wealthy or made impulsive or contradictory decisions in his or her final years. Some estates are eligible for simplified probate alternatives instead of the full probate. Hiring a non-attorney legal document assistant is the best way to ensure that your probate or simplified probate alternative process goes smoothly and all the heirs get their inheritance.

In this regard, Social Security numbers are for human beings, and employer ID numbers are for everything else.

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In other words, when a person dies, his or her property lives on as a legal entity until the personal representative of the estate usually a family member, but sometimes a lawyer can wrap up all its unfinished business. The lifecycle of an estate lasts only as long as the probate process, and that is where probate law in California comes into play. At the end of probate, the estate settles, and the heirs collect their inheritance.

probate laws in california

Filing probate can be alot of work. Because of this, many states have incorporated other options to settle estates of people who do not own much property. For example, probate law in California provides for several simplified probate alternatives which are faster and less expensive than full probate. Keep in mind, however, the choice of simplified process that applies to your case depends on several factors. These factors include the value of the estate and whether the deceased person owned real estate.

Furthermore, remember that probate law in California is not the same as probate law in another state. Every state has their own unique laws and procedures regarding the probate process. You can reach our experienced staff at Was this article helpful?

We would love to know your thoughts! If you found this article helpful, please check the LIKE button below. Your feedback helps us plan topics for future articles. Save my name, email, and website in this browser for the next time I comment.

Notify me of new posts by email. Get help filing a California Probate! What our Clients Say There were 7 owners, most of whom were born in the s.In the movies, they make inheriting money look simple: You get a letter in the mail or a phone call saying that you inherited a certain amount of money from a recently deceased relative, then you deposit the check in your bank account, and then you go on a spending spree. Specifically, the estate must go through probate.

Understanding probate estate laws is key to getting through the process in as inexpensively as possible. If you are the personal representative of the estate, also sometimes called the executor or executrix of the will, then you are the one doing most of the work to ensure that the money gets to the heirs according to probate estate laws. Most of the time, there are no major obstacles, so you do not need a lawyer.

It is still a lot of very precise and tedious work, though.

probate laws in california

You can save money and stress by hiring a California registered legal document assistant to prepare the probate forms. Read on to learn more. From start to finish, probate usually takes a little less than a year.

The probate courts supervise the entire process, but the personal representative of the estate does most of the work involved. First, you must apply to admit the estate for probate. Once probate starts, you, as the personal representative of the estate, have to follow probate estate laws. These duties are incorporated in DE Duties and Liabilities of the Personal Representative, a form filed with the probate petition, and include:.

It can be a hassle, but hiring a lawyer will cost you a lot of money without saving you a lot of trouble. Probate estate laws in California provide a variety of way to settle an estate.

Some estates can avoid probate entirely. California probate estate laws provide that an estate that meets this threshold because the deceased person did not own much property or because they kept most of their assets in a trust, and trusts are exempt from probate.

Having your probate documents professionally prepared is a practical way to avoid the hassles of probate estate laws. Please call us at for more information and details about our services.

Was this article helpful? We would love to know your thoughts! If you found this article helpful, please check the LIKE button below. Your feedback helps us plan topics for future articles. Save my name, email, and website in this browser for the next time I comment. Notify me of new posts by email.Suite Los Gatos, California A "short" or "summary" probate proceeding can take as little as approximately 30 days. However, not every estate qualifies for the "short" or "summary" probate proceeding.

See What Is Probate? A "full" formal probate proceeding can be completed in as little as approximately 6 months from the date that the probate petition is filed with the court to the date of distribution. But the time can run longer depending upon the creditor's claims filed against the estate, litigation, disputes among the beneficiaries, etc. Most probates usually take six months to a year. The so-called "delay" of probate is usually not a significant problem. In most cases, family members have prompt access to joint bank accounts or life insurance proceeds.

If special needs exist, the probate court may allow for preliminary distributions or a family allowance. Most attorneys charge the "statutory fee" for handling a probate. The statutory fee is set forth in California Probate Code sections The statutory fee represents the maximum fee for ordinary probate legal services that may be charged by an attorney.

In addition to the statutory fee, attorneys are entitled to obtain additional fees for "extraordinary services" such as handling the sale of real property during the course of the probate proceeding, or assisting in the preparation of tax returns for the estate.

Our firm's practice is to charge a reasonable hourly rate for the hours that we spend on the case which, in most cases, is less than the statutory fee. Our fees are negotiable and in almost all cases are deferred until the end of the probate proceeding. If you are interested in hiring our firm to handle a probate or trust matter in California, please call Pauline Reimer at to set up a free initial consultation.

The term "costs" does not include attorney's fees, but includes the initial filing fee, the publication fee for the publication of the notice of petition to administer estate and the probate referee's fees. If the case involves litigation, there may be other costs for such things as deposition reporters, subpenas, expert witnesses, etc.

In some instances, property can be transferred without a formal probate proceeding. Certain assets, for instance, may not be subject to probate. Life insurance, for example, usually passes directly to the named beneficiary without court confirmation. Property held in joint tenancy may also pass directly to the surviving joint tenant. In other cases, some or all of the decedent's assets may qualify for a "summary probate" or "set-aside proceedings.

These proceedings are less complicated alternatives to a formal probate. For example, if all of the decedent's property goes to the surviving spouse, a summary probate proceeding can be used where a "spousal property petition" is filed with the court seeking court confirmation that the surviving spouse owns the property.