Law Office of Derryl H. Molina

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Frequently Asked Questions About California Probate

1. How long does a California probate take?

If your estate qualifies for a "short" or "summary" probate proceeding, it can be done in as little as 30 days.  Unfortunately, most estates don't qualify for the "short" or "summary" probate proceeding.   The regular formal probate proceeding can be completed in approximately 7 months from the date that the probate petition is filed with the court to the date of distribution if there are no or few assets to distribute. However, if there are creditor's claims filed against the estate, litigation, or disputes among the beneficiaries,  the proceeding can drag on for 9 months to two years. 

2. How much are the attorney's fees?

Most attorneys charge the "statutory fee" for handling a probate, which is set forth in California Probate Code sections 10800-10850. The statutory fee is the maximum fee for ordinary probate legal services that an attorney may charge.   However, in addition to the statutory fee, attorneys are entitled to obtain additional fees at their hourly rate 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.

3. What are the other costs that are involved in a California probate proceeding?

In addition to attorney's fees, the "costs" of a probate includes the initial filing fee, the publication fee for publishing the notice of the petition to administer the estate, as well as the probate referee's fees.  If the case involves litigation, other costs arise for such things as deposition reporters, subpoenas, and expert witnesses.

4. Can property be transferred without probate in California?

A decedent's property can be transferred without a formal probate if the type of assets the decedent owned at the time of death and/or the nature and size of the decedent's estate fall into certain categories. Assets not be subject to probate are:  Life insurance and any type of account that has a named beneficiary.  These assets usually pass directly to the named beneficiary without court confirmation. Real and Personal Property held in joint tenancy may also pass directly to the surviving joint tenant.

Since there may be situations a formal probate is desirable, be sure to consult with an attorney to see if a formal probate proceeding will be beneficial to the heirs prior to taking any steps to transfer the decedent's property without probate.

5. Who will be appointed the administrator or executor of the estate?

If the decedent left a will and named an executor in his or her will that person will most likely be appointed as the executor of the decedent's estate unless the named executor refuses to act or is unfit to serve as executor. If the decedent died without leaving a will, the court will appoint a person to act as the administrator of the decedent's estate. California law provides a list of relatives designating who has priority to act as the administrator of the decedent's estate. The court will appoint one of these relatives in the order of their priority to act as the administrator of the decedent's estate provided the person is qualified and there are no objections to his or her appointment. The parties can also request that more than one individual act as administrators of the decedent's estate.

7. What happens if there is no Will in California?

If a California resident  dies without a will, his or her property will be distributed to those individuals who constitute the decedent's heirs under California's laws of intestate succession. Determining how the decedent's property will be distributed also depends on how title to the decedent's property was held as of the date of death, whether or not the decedent's property consisted of separate property, community property, joint tenancy property or property belonging to a domestic partnership. Probate of an intestate estate will still be required if the assets are over $100,000 and/or $20,000 in real property, unless specific property of the estate is not subject to probate such as life insurance or joint tenancy bank accounts. In cases of intestacy, the court will appoint an administrator to handle the probate proceeding.  This is  generally the decedent's closest relative.   The sooner you consult an attorney after the decedent's death, the easier it is to make a claim on the decedent's property.

The information on this website is for educational purposes only and should not be considered legal advice or an attorney-client relationship. For clarification of any material of this website or to seek help on your particular issue, feel free to contact The Law Office of Derryl H. Molina at (408) 244-4992 or email Derryl H. Molina at attderryl@comcast.net