Probate Administration

PROBATE IN CALIFORNIA

The probate process in California is a court-supervised procedure for managing and distributing a deceased person’s estate. It begins with filing a petition in the county where the decedent lived to open probate and validate the will, if one exists. If there is no will, the court will appoint an administrator to handle the estate. Once appointed, the executor or administrator is responsible for identifying and valuing the decedent’s assets, notifying creditors, paying valid debts and taxes, and filing the necessary legal documents with the court.

After debts and taxes are settled, the remaining assets are distributed to beneficiaries according to the will or, if no will exists, in accordance with California intestate succession laws. The probate process can take anywhere from 9 months to over a year, depending on the size and complexity of the estate, as well as any disputes that may arise. Court oversight ensures that the estate is handled properly, but it can also involve significant time and costs, including court fees, attorney fees, and administrative expenses.

DIFFERENT POSSIBILITIES

No Will (Intestate Succession)

When someone passes away without a will in California, their estate is distributed through intestate succession, as determined by state law. The probate court appoints an administrator to oversee the estate and ensure debts, taxes, and administrative expenses are paid. Assets are then distributed to the decedent’s closest relatives, such as a spouse, children, or other heirs, following a priority order set by California law. Without a will, the court decides who inherits the estate, which may not align with the decedent’s wishes.

Will (Testate Succession)

If the deceased left a will, the probate court ensures the document is valid and that its instructions are carried out. The will typically names an executor responsible for managing the estate, paying debts and taxes, and distributing assets to beneficiaries as specified in the will. While a will provides clarity on the decedent’s wishes, it does not avoid probate. The process still involves court supervision, which can take months to over a year, depending on the complexity of the estate and any disputes.

Living Trust

A living trust is an estate planning tool that allows assets to bypass probate entirely. In this arrangement, the individual (grantor) transfers ownership of their assets into the trust during their lifetime. A trustee—who can also be the grantor—manages these assets and ensures they are distributed according to the trust’s terms after the grantor’s death. Because the trust avoids court involvement, the distribution process is typically faster, more private, and less costly than probate. Living trusts offer significant flexibility and control over how assets are managed and distributed.

WHAT IS INTESTACY

Intestacy in California refers to the legal process that occurs when a person dies without a valid will. In such cases, their estate is distributed according to California’s intestate succession laws, which dictate how assets are passed to the deceased person’s closest relatives. The probate court oversees this process and appoints an administrator to manage the estate, including paying debts, taxes, and distributing remaining assets. Under intestate succession, priority is given to the spouse and children, followed by other family members such as parents, siblings, and more distant relatives if no immediate family exists. Intestacy laws ensure that assets are distributed in an orderly manner, but they do not account for the decedent’s personal wishes, which is why having a will or trust is often recommended.

DIFFERENCE BETWEEN COMMUNITY PROPERTY AND SEPARATE PROPERTY

In California, intestacy laws determine how assets are distributed when someone dies without a will, distinguishing between community property and separate property.

Community Property

Community property includes assets acquired during a marriage or domestic partnership. Under intestate succession, the surviving spouse or partner automatically inherits the entire community property, regardless of whether there are children.

Separate Property

Separate property refers to assets owned before marriage, gifts, or inheritances acquired during the marriage. The distribution of separate property depends on the number of children:

If there is one child, the surviving spouse inherits half of the separate property, and the child inherits the other half.
If there are two or more children, the surviving spouse inherits one-third of the separate property, while the remaining two-thirds are divided equally among the children.

This distinction ensures that both the spouse and children receive a share of the estate while prioritizing the surviving spouse’s rights to community property.

SPOUSAL PROPERTY PETITION

A Spousal Property Petition in California is a simplified legal process that allows a surviving spouse or registered domestic partner to confirm or transfer community property assets without undergoing full probate. Under California’s community property laws, assets acquired during the marriage are generally considered jointly owned. When one spouse passes away, the surviving spouse can file this petition to confirm their ownership of the deceased’s share of the community property or to transfer it into their name. This process is faster, less expensive, and less complex than a full probate proceeding, making it an efficient way to handle community property assets after a spouse’s death.

WHO IS THE PERSON IN CHARGE: Difference Between Administrator and Executor

The primary difference between an Administrator and an Executor lies in whether or not the deceased person left a valid will:

Executor

An Executor is a person named in a valid will to manage the deceased person’s estate. The role of the executor is to ensure the terms of the will are carried out, which includes tasks such as gathering assets, paying debts and taxes, and distributing the remaining property to the beneficiaries specified in the will. Because the executor is chosen by the decedent, they are typically someone trusted by the individual, such as a family member, friend, or professional.

Administrator

An Administrator is appointed by the probate court when someone dies without a valid will (intestate) or when the named executor in the will is unable or unwilling to serve. In this case, the court designates an administrator—typically a close relative—to manage and distribute the estate according to California’s intestate succession laws. The administrator’s duties are similar to those of an executor, but they must follow the legal guidelines for distribution since no will exists.

In summary, an executor is chosen by the decedent in a will, while an administrator is appointed by the court when no will exists or no executor is available.

HOW MUCH DOES IT COST

A California Probate Attorney does not get paid until the end of the probate process when the heirs or beneficiaries also get their share of the Estate. The cost of probate in California can vary depending on the size and complexity of the estate, but it generally includes statutory fees, court costs, and other expenses. The primary components are as follows:

Statutory Fees for Attorneys and Executors

California law sets fees for both the attorney and the executor based on a percentage of the estate’s gross value (not accounting for debts or mortgages). These fees are as follows:

4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9,000,000
0.5% of the next $15,000,000
For estates exceeding $25 million, the court determines a “reasonable” fee.

Example: For an estate valued at $500,000, the attorney’s and executor’s fees would each be:

4% of the first $100,000 = $4,000
3% of the next $100,000 = $3,000

2% of the remaining $300,000 = $6,000
Total = $13,000 for each (attorney and executor).

Additional Costs

Court Filing Fees: Typically $1,000.
Appraisal Fees: Court-appointed probate referees charge for valuing the estate, often 0.1% of the asset value.
Publication Fees: Fees for publishing probate notices in a local newspaper, around $200–$500.

Miscellaneous Fees: Bond premiums, mailing costs, and other administrative expenses may also apply.