Below are some of the most common questions we are asked. If you have specific questions about your case, please use our Quick Probate Review form, and we will personally review.
- Does every estate need to be probated?
- How much does it cost to probate an estate?
- How can I get money out of the decedent's bank account?
- How can I get title to the decedent's vehicle?
- What is a revocable trust?
- What happens if a person dies without a will or trust?
- What is an advance health care directive?
- What is power of attorney?
No. The following estate assets usually do not need to be probated: small estates under $150,000; property passing to a surviving spouse; property held in a living trust; joint tenancy property; accounts with pay on death beneficiaries (POD) such as bank accounts / Individual Retirement Accounts (IRA) / Life Insurance / Pension Funds and Brokerage Accounts; vehicles owned by the decedent.
The usual cost to probate an estate include the following: The court filing fee, newspaper publication cost, the probate referee's fee to value the estate for the court, and in some instances the cost to obtain a bond. These costs usually range from $1,200 - $2,000. The attorney and the estate representative are the paid from the estate for their share of the work in probating the decedent's estate. The amount of their fee is based on the value of the estate as follows: 4% of the first $100,000; 3% of the next $100,000; 2% of next $800,000; and 1% of the next $9,000,000 (See California Probate Code, Sec. 10800-10810).
For example, if the value of the estate is $500,000 the attorney and the estate representative would each be paid $13,000 calculated as follows:
4% on first $100,000
These fees are paid from the decedent's estate at the conclusion of the probate process and must be approved by the court. The estate representative can choose to waive his or her fee. I offer reduced attorney's fees for estates valued over $500,000.
Joint account holders have immediate access. Pay on death beneficiaries usually have to wait 40 days and then go to the bank with a certified death certificate. All others must complete and sign an affidavit stating that no probate has been filed in any court, the value of the decedent's estate is under a $150,000, and no other person or persons has a superior right to the funds. The bank usually has its own form.
Because it is very common for a decedent to own a car at the time of death the DMV has developed its own form to transfer title. The new owner should bring to the DMV the pink slip, registration or other means to identify the vehicle, a certified copy of the death certificate, and their own driver's license. In most instances this will be all that is needed to transfer title.
A revocable trust sometimes referred to as a living trust or A-B trust is an estate planning tool designed to avoid probate. Similar to a will, a trust states who will be in charge of a decedent's estate upon death (the trustee) and who will receive that property (the beneficiaries). The person making the trust (the trustor) transfers title to their home and other real property to the trust by means of a quitclaim deed. A "pour-over will" is also prepared at the time the trust is created. This specific type of will insures that any assets acquired after the creation of the trust, but not transferred to the trust, will be distributed in the same manner as those assets in the trust. In other words, the assets are poured over into the trust.
If a person dies without a will or a trust (the decedent dies intestate) then the decedent's property will pass to the decedent's closest relatives (heirs) in the following order: surviving spouse, children, parents, siblings, and more distant relatives (Probate Code §6400). If the decedent owned a home or other real property which is not held in joint tenancy, and the heir is not the surviving spouse, then the decedent's estate must be probated in order for the property to pass to the heirs. If the surviving spouse is the heir, then there is a simplified probate procedure called a "Spousal Property Petition". The cost and the procedure to probate the estate of someone who dies without a will is the same as for someone who dies with a will.
An advance health care directive specifies who can make health care decisions in the event an individual is unable to make his or her own decisions. It also includes language regarding organ donation if any, and end of life care choices such as the use or non-use of artificial life support systems. It often includes a directive to administer pain medication to keep a terminally ill patient comfortable and allow the individual to die without the use of extraordinary medical procedures.
A power of attorney allows an individual to authorize someone else to handle his or her financial affairs. The power of attorney automatically terminates when the individual who created the power of attorney dies. There are different types of power of attorney. A power of attorney can become effective immediately upon signing, or may only become effective when an individual is unable to make his or her own financial decisions. A power of attorney can be revoked at any time by giving proper notice.