Probate and Trust Administration

Walnut Creek Elder Law Lobby
Michael J. Young of Walnut Creek Elder Law specializes in estate planning, asset protection and elder law.

California Probate Attorney

Probate in California involves a somewhat complex legal proceeding wherein the court appoints a representative to finalize the decedent’s estate. Upon court order, the representative makes the final distributions from the decedent’s estate to pay for the last debts of the decedent, including taxes, and makes distributions to the beneficiaries. The procedure can take up to a year or more to finalize, but can take less time if the estate is simple and there are no complications. The probate procedure can occur with or without a will.

Revocable Living Trusts

The revocable living trust and other estate planning tools are popular because they help to avoid the expense and time involved with a probate. Assets that are transferred to the revocable living trust are not subject to probate.

Diagram of Estate Planning

Probate Potential

Assets that are subject to probate, for instance, would be those that are in the decedent’s name alone. Assets that are held with another person as tenants in common, as opposed to joint tenancy, would be subject to probate. If the total amount of assets to be probated are under $100,000, a formal probate may not be necessary to transfer the assets to the intended beneficiaries, and a simplified procedure may be utilized.

Assets

Assets that are not subject to probate would be those held in joint tenancy with another person and assets held in a revocable living trust. Also, assets that are held in accounts which have “pay on death” provisions are not subject to probate. Also, life insurance and IRA accounts with a named “pay on death” beneficiary are not subject to probate.

Fees

The fees paid to the attorney and the executor or administrator are the same. If the executor or administrator are also beneficiaries, they may waive their fee. The amount of the fees are set by the California Probate Code according to a formula, based on the value of the assets. Additional or “extraordinary fees” may be allowed by the court if litigation is required, for instance.

 

Five Frequently Asked Probate Questions

By Michael J. Young, Your Probate Attorney in Walnut Creek, CA.

Five frequently asked probate questions, updated in July 2020

  1. Will I, as your client, need to appear in court if I am appointed as executor?

The answer is generally NO. Probate court proceedings are conducted mostly through documents, forms and written declarations. Testimony in probate court is rare, except in the case of a will contest.

  1. If I am appointed by the court to be the executor, do I have to serve?

 No. If you decide that you do not want to serve as the executor, the court will usually appoint the alternate executor named in the will. If there is no alternate executor, or no will, the court will usually appoint a capable family member to serve.

  1. How do the client and the attorney get paid for their services?

If you, the client, is appointed by the court to administer the estate, the Probate Code allows for a payment of a fee to you. The amount of the fee is set by the Probate Code, and is determined by the gross value of the estate assets. You, as the client, can either accept the fee or waive the fee. The fee the attorney receives is usually in the same amount.

  1. How long does an average probate take?

            A probate can be completed in 8 to 12 months, provided that there are no unusual problems. There is a four-month creditor’s claims period. The court calendars are crowded, so hearings are set several weeks out.

  1. Do living trusts go through probate?

No, and that is one of the advantages of having a revocable living trust. When an asset, such as your home, is properly titled into your trust, there will be no probate. Your home will pass to your named beneficiaries without court involvement.