{"id":1297,"date":"2021-01-13T16:22:26","date_gmt":"2021-01-13T23:22:26","guid":{"rendered":"https:\/\/mybfmgroup.com\/?page_id=1297"},"modified":"2021-01-13T16:48:29","modified_gmt":"2021-01-13T23:48:29","slug":"what-is-a-reasonable-salary-for-an-s-corporation-officer","status":"publish","type":"page","link":"https:\/\/mybfmgroup.com\/?page_id=1297","title":{"rendered":"California Probate: An Overview"},"content":{"rendered":"\t\t
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California Probate: An Overview<\/h2>\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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The California probate process isn’t as complicated as in some states, but it can be expensive.<\/strong><\/h5>
In California, probate isn\u2019t a particularly onerous process, and there are several legal shortcuts that let many families avoid probate court altogether after a loved one dies. But probate in California can have one big drawback: extremely high attorney fees.<\/h5>
Will Probate Be Necessary?<\/strong><\/h5>
Probate isn\u2019t always necessary. If the deceased person owned assets in joint tenancy with someone else, or as survivorship community property with his or her spouse, or in a living trust, those assets won\u2019t need to go through probate. The same is true for assets held in a revocable living trust and accounts for which a payable-on-death beneficiary has been named. Assets inherited by the surviving spouse or registered domestic partner can also be transferred with a streamlined procedure, using a document called a Spousal (or Domestic Partner) Property Petition. The probate court is involved, but the process is simple and quick. There is no limit on the value of property that can be
Other assets may not need to go through probate, either. If the total value of the probate estate (the assets that can\u2019t be transferred to inheritors in one of those other ways) is small enough, probate won\u2019t be necessary. Currently, the cap is $166,250. Inheritors can claim the assets with a simple sworn statement (affidavit) or can go through a streamlined summary probate process. Cal. Probate Code \u00a7 13100.<\/h5>
The Basic Probate Process<\/strong><\/h5>
If probate is necessary, someone must come forward to start the process. If there\u2019s a will, the executor named in the will should get the ball rolling. If there\u2019s no will, or the person named to serve as executor isn\u2019t available, then usually a family member asks the court to be appointed as the \u201cadministrator\u201d of the estate. It\u2019s the same job.
The executor\u2019s job will probably last six months to a year. First, the executor files the will, along with a document called \u201cPetition for Probate,\u201d with the probate court in the county where the deceased person lived. There is a filing fee of about $435; some counties charge a bit more. Some other forms may need to be filed as well, and formal notices need to be given to beneficiaries, particular family members and creditors. The will, if there is one, must be shown to be valid; usually this is done by having the witnesses sign a sworn statement that\u2019s submitted to the court. When everything is in order, the court issues \u201cLetters Testamentary\u201d or \u201cLetters of Administration,\u201d appointing an executor and granting that person authority over estate assets.
Once the executor has this authority, the process of gathering the deceased person\u2019s assets can begin. It\u2019s also the time for the executor to get organized, set up a filing system so that benefits and bills aren\u2019t overlooked, apply for a taxpayer ID number for the estate, and open an estate bank account. The executor will need to compile, and file with the court, an inventory and appraisal of all probate property.If all this sounds overwhelming, remember that it doesn\u2019t all have to be done at once. It does involve a lot of paperwork (and usually, phone calls), but most well-organized and conscientious people can handle it. And the executor can always get help, from family members or from an attorney who understands the process and can serve as a guide.
Most probate cases in California are handled under the state\u2019s Independent Administration of Estates Act, which lets the executor take care of most matters without having to get permission from the probate court. ( and following.) The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. Certain other acts\u2014for example, selling real estate\u2014require court approval. Cal. Probate Code \u00a7 7261.
During the probate process, it\u2019s the executor\u2019s job to keep all assets safe. For example, a house must be insured and maintained; heirlooms must be safeguarded from theft or damage. The executor is also responsible for filing tax returns for the deceased person and for the estate.
In California, creditors have four months to come forward with their claims. Many estates don\u2019t receive any formal claims from creditors; instead, the executor simply pays outstanding bills (for expenses of the final illness, for example). If there isn\u2019t enough money to pay all valid claims, however, state law sets out the order in which claims are to be paid from estate assets. California Probate Code \u00a7 \u00a7 9050 and following.
Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That\u2019s when the executor can distribute all the estate assets to the people who inherit them.<\/h5>
Probate Attorney Fees in California<\/strong><\/h5>
In most states, lawyers charge by the hour or collect a flat fee for probate work. Not so in California. It\u2019s one of only a few states that let lawyers charge a \u201cstatutory fee\u201d\u2014an amount that is a percentage of the value of the assets that go through probate. The percentages are set out in state statutes. (Cal. Probate Code \u00a7 \u00a7 10810, 10811.)
Here are the current rates:
4% of the first $100,000 of the gross value of the probate estate
3% of the next $100,000
2% of the next $800,000
1% of the next $9 million
.5% of the next $15 million
A reasonable amount (determined by the court) for any amounts higher than $25 million
In practice, this means that probate lawyers\u2019 fees can be very high in relation to the amount of actual work done. Probate is usually a matter of filing papers; there\u2019s no trial and there may be no court appearances at all. So, let\u2019s say your probate estate contains a $600,000 house you own in your name alone, plus some bank and brokerage accounts and a car. The total value is $900,000. The attorney\u2019s statutory fee would be $21,000\u2014for very little paperwork.
But wait, what if there\u2019s still $200,000 to pay on the mortgage, reducing your equity to $400,000? The attorney\u2019s fee would still be $21,000\u2014it\u2019s based on the gross amount of the probate assets, not what you actually own.
California lawyers don\u2019t have to charge this way\u2014they can bill by the hour or charge a flat fee. They do it because the statutory fees are such a good deal for them. And the fees are only for ordinary work\u2014if there\u2019s something \u201cextraordinary,\u201d the lawyer can ask for a bigger fee.<\/h5>
Is a Lawyer Necessary?<\/strong><\/h5>
Unless people are fighting over the estate, probate is largely a matter of paperwork. In California, the paperwork is mostly fill-in-the-blank forms published by the state\u2019s Judicial Council. All those forms are available for free in the section of the California Judicial Council website in the probate category.
Many executors find that with the right information, they can handle a California probate themselves, as long as there are no unusual complications for example, a fight over inheritance, more debts than assets and uncertainty about who to pay, or an ongoing business.<\/h5>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t
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\n\t\t\t\t\t\n\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\tGet HELP<\/span>\n\t\t\t\t\t<\/span>\n\t\t\t\t\t<\/a>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

California Probate: An Overview The California probate process isn’t as complicated as in some states, but it can be expensive. In California, probate isn\u2019t a particularly [\u2026]<\/span><\/p>\n","protected":false},"author":1,"featured_media":0,"parent":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"footnotes":""},"class_list":["post-1297","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=\/wp\/v2\/pages\/1297","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1297"}],"version-history":[{"count":10,"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=\/wp\/v2\/pages\/1297\/revisions"}],"predecessor-version":[{"id":1308,"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=\/wp\/v2\/pages\/1297\/revisions\/1308"}],"wp:attachment":[{"href":"https:\/\/mybfmgroup.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1297"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}