The probate process takes a minimum of 6 months because the personal representative must go through a period of noticing the hearing, allowing the estate to stay open for 120 days to let creditors file claims, and then, at the end of that 120 days period, filing a notice and petition for final distribution.
The maximum amount of time can be three or more years, depending on the complexity of the estate and what issues arise during the administration. Certain probate estates have been held open for 10 or even 20 years, because the nature of the issues require the estate to be held open. Typically, however, most estates take 9 to 12 months.
Can The Process Be Expedited? How Can I Prepare?
The best way to prepare for an initial meeting with a probate attorney is to gather all the names and addresses of the heirs and the people named in the will. Also, collect as much information as possible about the decedent’s assets, including copies of bank statements and stock account statements that are dated as close as possible to the date of death.
Collect all the estate planning documents, and assemble copies of any known debts that come in the mail, like credit card debts, bank loans, PG&E debts, water, power, garbage and so forth.
That way, when the person meets with the attorney, the attorney has as much information as possible to prepare a petition and file it in court. Typically, when someone comes to my office for the first meeting regarding a probate I fill out the probate petition and any related documents while he’s still there.
I typically follow up the meeting with a letter or email to the client describing additional documents or information I require to file the petition. However, I try to get as much information as possible at the first meeting. That way, we can prepare the petition for probate, finalize it, and have the client review it and sign it as quickly as possible.
We sign the petition as the client’s attorney and file it with the court. We then get assigned a hearing date, which is typically 40 or so days out, depending on how busy the court’s calendar is.
If everything is in order at the first hearing, the court grants the petition, admits the will to probate, and issues letters testamentary to the personal representative.
At this point, the 120-day period for creditors to file claims starts running. There is nothing anyone can do to reduce or eliminate that period, because it is statutorily required. Even if someone knows who all the creditors are and sends them checks for payment, the court will still require the 120-period to run. After all, other creditors may exist and have a right to this time frame.
The other thing that must be done during the probate process is to have a newspaper publish a notice of petition for probate of will and letters testamentary. Also, the attorney must give actual notice of probate administration to all known creditors.
How Can Someone Avoid Need for a Probate Of His Estate?
The primary way to do this would be to have a trust. With a trust, a person can avoid probate at his death but maintain control of his assets during life.
Alternately, people can set up joint tenancy bank accounts or pay-on-death accounts. He can also place a title to real estate in joint tenancy with a person who will take it after his death. This avoids probate. However, it forces the person to lose full control of the property after death. Alternately a person can create a “life estate” in his real property naming a successor owner at death who has no right of control during the tenant’s lifetime.
In a trust, the person creating the trust retains full control as the trustee. A trust is typically preferred.
Another way to avoid both probate and the need for a trust is to put “pay on death” beneficiaries on bank accounts. These titles do not affect the control of the account during the creator’s life. The account passes to the surviving beneficiary at death and avoids probate.
How Much Does Probate Cost?
The attorney’s statutory fee in a probate is the same as the executor’s statutory fees.
These fees are on a sliding scale in California, depending upon the value of the estate accounted for. This means the value of the estate (as determined by a probate referee who evaluates each asset as of date of death) plus the value of any income received by the estate during the term of administration. Deduct any losses on sales property; add any gains on sales of property and an amount of the estate accounted for will be established.
From this number, the attorney’s and executor’s fees will be calculated. In California, fees are calculated on the scale of 4 percent of the first $100,000 of value, 3 percent of the next $100,000 of value, 2 percent of the next $800,000 of value, and 1 percent if the value was in excess of one million. For example, if the value of the estate accounted for is $500,000, then the attorney’s fees will be $13,000.
For more information on The Probate Process, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (916) 635-0302 today.