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 California or owned real property in California. 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? Probate Code section 890, enacted in 2019 by AB 473, requires the Judicial Council to adjust the dollar amounts to qualify for the various small estate procedures under Division 8 of the Probate Code (Probate Code sections 13000 et seq.) based on changes to the CPI for “All Urban Consumers” published by the United States Bureau of Labor Statistics. Those inflation adjustments are to occur every three years, and the first such adjustment took effect on April 1, 2022. As part of its “Spring Cycle” of proposals, the Judicial Council recently published SPR 22-16 setting forth the amount of those inflation adjustments as follows:
Deaths before April 1, 2022:
- $166,250 for Affidavit for Collection, Receipt, or Transfer of Personal Property (Prob. Code § 13100).
- $166,250 for Court Order Determining Succession to Property (Prob. Code § 13150)
- $55,425 for Affidavit for Succession to Real Property of Small Value (Prob. Code § 13200)
- $16,625 for Affidavit for Collection of Compensation Owed to Deceased Spouse (Prob. Code § 13600)
Deaths on or after April 1, 2022:
- $184,500 for Affidavit for Collection, Receipt, or Transfer of Personal Property (Prob. Code § 13100)
- $184,500 for Court Order Determining Succession to Property (Prob. Code § 13150)
- $61,500 for Affidavit for Succession to Real Property of Small Value (Prob. Code § 13200)
- $18,450 for Affidavit for Collection of Compensation Owed to Deceased Spouse (Prob. Code § 13600)
Subdivision (c) of Probate Code section 890 requires the Judicial Council to publish the inflation-adjusted dollar amounts, together with the date of the next scheduled adjustment. The next scheduled adjustment will occur on April 1, 2025.
Of particular note, for deaths occurring on or after April 1, 2022, Judicial Council form DE-300 must be attached to any affidavit, declaration or petition under any of the small estate procedures under Division 8, including an affidavit under Probate Code section 13100. (See Prob. Code §§ 13101(f), 13152(e), 13200(f), and 13601(e)(2).)
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:
- 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.
CONTACT SWEENEY PROBATE LAW FOR AN INITIAL CONSULTATION
Understanding the issues discussed in this article requires the assistance of a qualified probate attorney who can better assess the appropriate course of action. If you are the executor or other nominated person in a Will and you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions.
From my office in Southern California, I represent families in all California counties, including Southern California Counties such as Imperial County, Los Angeles County, San Bernardino County, and San Diego County. I also represent parties residing outside of California, including foreign countries, that have probate matters affecting real and/or personal property in California.
Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.
Copyright © 2022, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.