SHOULD A PROBATE REPRESENTATIVE OR EXECUTOR HIRE A PROBATE LAWYER?
In California, probate is handled in the California Superior Courts. If your deceased passed away while residing in Riverside County or San Bernardino County the probate must be filed in the county where the deceased resided at the time of death. Probate is a court procedure that includes transferring a deceased person’s assets to the beneficiaries listed in their will, proving the validity of the will; inventorying and appraising the estate property; paying any debts or taxes (including estate taxes); distributing the property as directed by their will or California probate law if there is no will. Even if there is no will probate is handled in the California Superior Courts.
Whether you should retain a probate lawyer depends upon a number of factors. The use of a probate lawyer greatly increases the odds that the administration will be stress free. If you believe you can go it alone, you should first answer the basic questions below. If you answer “no” to any of them or you are not sure, you will likely need the assistance of a probate lawyer.
- Are you familiar with California probate law and local court rules and procedures. If so, you might be able to represent yourself.
- Can the deceased person’s assets be transferred outside of probate? The answer to this question depends on how much (if any) probate-avoidance planning the deceased person did before death. Some common examples of assets that don’t need to go through probate are assets are held in joint tenancy and community property with right of survivorship. Assets held in a living trust can also bypass probate. Probate is also unnecessary for assets for which the deceased person named a beneficiary—for example, bank accounts, retirement accounts and life insurance.
- Does the estate qualify for California’s simple “small estate” procedures? Small California estates with assets totaling $150,000 or less may be settled without formal probate proceedings, using relatively simple transfer procedures. This summary form of probate is available regardless of whether the assets are real property or personal property as long as the following are true:
No administration proceedings are pending or have been conducted for the decedent’s estate or, if they have, the personal representative has consented in writing to the summary probate procedure.
You must first compute the gross value of all property the decedent owned when he or she died. The gross value of all real and personal property owned by the decedent in California on the date of death can be no more than $150,000. This figure is the value of the property, not counting any money owed on the property. In other words, you cannot deduct debts while calculating the gross amount.
There are separate California summary probate procedures for small estates. If the estate qualifies, anyone entitled to inherit property from the decedent, whether as a beneficiary under the will or an heir under intestate succession laws, may settle the estate and obtain title or possession of the property with these simplified probate transfer procedures. In most cases, the procedure can be completed in just a few weeks after the 40-day waiting period:
- For personal property,
- For real property not exceeding $50,000 in value,
- For real or personal property not exceeding $150,000 in value.
Spouses or domestic partners. In addition to the above, there is also a simplified California probate procedure for spouses or domestic partners. All property that a surviving spouse or domestic partner is entitled to receive outright from a deceased spouse or partner may be “set aside” to the survivor without formal probate. However, a Spousal Property Petition is required to be filed in the county in which the estate of the deceased spouse may be administered.
- There is no limitation on the amount or value of the assets to be transferred and includes community property, separate property and quasi-community property (property acquired by married or registered couples outside California that would have been community property if acquired in California). To qualify as a “surviving spouse,” the survivor must have been legally married to the decedent at the time of death. To qualify as a “surviving registered domestic partner,” you must have registered your partnership with the decedent through the California Secretary of State by filing a Declaration of Domestic Partnership Form DP-1.
A Spousal Property Petition would be appropriate for the following types of property:
- Real property held in the names of the spouses in joint tenancy or where the deed does not indicate the manner in which title is held,
- Real property held in the name of the decedent alone or with a third party,
- Securities, stocks and bond in the names of the spouses as “community property” or “tenants in common” or in the name of decedent alone,
- Trust deed notes or promissory notes payable to decedent alone or decedent and surviving spouse,
- Motor vehicles in name of decedent alone or in name of decedent and surviving spouse but not joined by “or”,
- Bank accounts in the name of the decedent alone or decedent and surviving spouse.
- Are family members getting along? If a family member is making noises about suing over the estate, a probate lawyer may be able to help you avoid a court battle.
- Do you have plenty of time on your hands, and no time pressure with respect to the estate, and no pressure from creditors or heirs. If so, you might be able to represent yourself.
- Is there enough money in the estate to pay debts? If there’s enough money to pay legitimate debts (for example, final income taxes, expenses of the last illness, and funeral costs), with some left over for beneficiaries under the will or state law, you won’t have to figure out which debts to pay. If, however, there may not be enough money in the estate to pay debts and taxes, don’t pay any bills before you get legal advice.
- Should I hire a Paralegal? A paralegal CANNOT give you legal advice, represent you in court, or choose your forms for you. Paralegals avoid these activities in order to protect themselves from being charged with the crime “unauthorized practice of law.” The paralegal can only provide information, perform typing, proofread, and prepare documents as the executor instructs, and file them with the court. There are many paralegals that do not file your forms at the court for you.
Oh, and by the way, if you do choose the paralegal and things don’t work out the way they were supposed to because of what the person did or advised, don’t expect your children to be able to hold that person responsible for the losses they’ve suffered.
- Will California probate attorney fees be excessive? California attorney probate fees are established by California law. The fees are paid from the assets of the estate upon conclusion of the probate. Only filing fees need to be advanced to proceed with a probate filing. If you believe the attorney probate fees will be excessive, you only need to compare them to other professional fees. They are typically much less. For example, under California probate law, to probate a $1,000,000 estate the attorney probate fee is calculated to be $23,000. This fee is considerably less than fees charged by realtors to market and sell property. No one considers the standard 6% commission on a real estate transaction to be out of line. To sell a $1,000,000 house, in a transaction which might only take 60 to 90 days, costs $60,000. To probate a $1,000,000 estate, which might take 6 to 9 months with several court appearances, the California attorney probate fee of $23,000 is significantly less.
To learn whether you should retain the services of a Riverside County or San Bernardino County probate lawyer, or to gain more information on California probate procedure or requirements, or to discover which strategies are best for your situation, please contact me for a free consultation. You can reach me by phone at 760-989-4820 or through my online contact form.