1. What is probate? (Top)

Probate is a court-supervised procedure in which the decedent’s assets are collected, debts and taxes are paid, and the assets are distributed to the decedent's beneficiaries, in conjunction with either the decedent’s will or by California law if the person died without a will.

For example, Al died with a will. His will directed his house to his wife Marge, his bank account to his son William and his car to his daughter Wendy. Al also had an outstanding $2,000 credit card bill and owed $1,000 in back taxes. Probate would result in Al’s assets being rounded up, his credit card debt and taxes paid and his assets distributed to the named beneficiaries since he died with a will.

2.  When does probate apply? (Top)

Probate generally applies whenever there is a probate estate that is equal to or greater than $100,000. California Probate Code §§13100-13116, 13150-13158, 13200-13210.

3. What comprises a probate estate? (Top)

The probate estate may include real and personal property, securities, bank accounts, mutual funds, individual retirement accounts and business interests. However, all of the aforementioned property may fall outside the probate estate if the property is:

(1) Joint Tenancy Property. California Civil Code §683

(2) Community Property with Right of Survivorship. California Civil Code §682.1

(3) Payable on death accounts (Bank accounts, life insurance, annuities and retirement plans). California Probate Code §5302

(4) Totten Trusts. California Probate Code §80-82

(5) Transfer on Death Securities. California Probate Code §5501-5512

(6) Held in trust. California Probate Code §13050(a)(1)

4. How long does probate last? (Top)

The typical California probate lasts 12 to 18 months. The reason for the length is due to the fact that the entire procedure is court-supervised and everybody knows how slowly the judicial process works.    

5. How much does probate cost? (Top)

Probate fees, for both the attorney and personal representative are set by statute. California Probate Code §10800;10810.

(1) Four percent on the first $100,000;

(2) Three percent on the next $100,000;

(3) Two percent on the next $800,000;

(4) One percent on the next $9,000,000;

(5) One-half of 1 percent on the next $15,000,000; and

(6) Above $25,000,000, a reasonable amount to be determined by the cour

A combined representative's fee and attorney's fee for probate of an estate valued at $400,000 would be $22,000. Costs of publication and filing fees would raise the cost by several hundred dollars.

6. Probate seems expensive and lengthy; can I opt out of it? (Top)