by: John B. Palley, Sacramento Probate Attorney
Losing a beloved member of a family is sad news to the family. Battling for the rights of the estates of the deceased is little complicated, if there is no proper will. Probate has a bad reputation and is called a lot of things. However, in many cases it’s necessary. Luckily, with the right attorney involved, handling one’s affairs after death can be pretty simple. At it’s essence, probate is the court-administered process of collecting and organizing a deceased person’s estate, paying the deceased’s bills and then distributing the remaining assets to those entitled to receive those assets. Although generally not a pleasant experience, probate cannot always be avoided and, even when it can be avoided, may be desirable in certain limited cases. The purpose of this brochure is twofold. First, to explain how the probate process works in California and second to show how I can be of assistance to you if you are asked to serve as the Personal Representative (“PR”) of an estate, during that most difficult time. Sacramento probate attorney John B. Palley can represent you in a probate case in any county in California as the Court’s allow telephonic “appearances” which enables us to easily represent you throughout the state.
GET STARTED QUICKLY
After the death of the decedent, it is generally a good idea to start the probate process as quickly as possible. Essentially a full probate takes 7 months, minimum, in California. Thus the sooner you file with the Court the sooner you will be finished! However, funeral and burial arrangements as well as other family matters need to be addressed first. Once these personal matters have been taken care of, it’s important to get the probate process started. The process begins by determining that you should be appointed the PR of the estate, and then hiring a competent attorney who can handle the probate for you. Hiring an experienced Sacramento probate attorney, like John B. Palley will leave you with as few worries as possible regarding the decedent’s estate. As your probate attorney, I will meet with you personally to determine what needs to be done, efficiently file all court documents, and move the probate process along towards the earliest possible conclusion. I have processed hundreds of probates in counties throughout California and I promise that I, and my firm, will handle your probate matter with professionalism and efficiency.
WHAT ARE THE DIFFERENT OPTIONS OF PROBATE?
Depending on the size of the assets there can be different options. We will explore each of these options with you before we file with the Court. For example, if the only asset in question is worth less than $150,000 it is likely we can employ sections of the probate code which allow assets to be transferred to you without going through the full probate process and generally at a reduced cost to you. If worth under $150,000 with no real estate we can use California Probate Code section13100 and if assets are worth under $150,000 but with real estate we can use California Probate Code section 13150. Additionally, if you are the surviving spouse, mourning the death of your counterpart, we may be able to use a spousal property petition which is quicker and less expensive than a full probate. In recent years a lot of work has been done in cases where the decedent had a trust but failed to properly “fund” the trust. We will explore whether a “Heggstad Petition” will work under your facts as that can save a lot of time and money. Before we file in the probate Court we will evaluate what the best option is for you.
WHAT IS THE PURPOSE OF PROBATE?
In general, all steps in the administration of an estate are directed toward three goals: collection and management of assets, payment of debts and taxes, and distribution of the balance of the assets as provided in the will (or through intestacy law if there is no will). As a probate attorney, we will work with you, the PR of the estate, to make sure the probate process moves along smoothly. While it will be our job to take care of preparing all legal documents and filings, making all court appearances, and generally moving the probate towards a conclusion, you will also have responsibilities. You will help ensure that all assets are found, a list of all creditors is assembled, and proper disbursements are eventually made. At all times, while serving as PR, you will have a fiduciary duty to the estate and the heirs of the estate. We will help guide you within the scope of your fiduciary duties.
HOW ARE ASSETS MANAGED AND COLLECTED?
As PR, you will take possession of all of the decedent’s property. Our Sacramento probate attorney will help you accomplish this task and provide advice regarding the management of estate assets. Proper and careful management of all assets, including securities, jewelry, deeds to real estate, bank balances, and other assets, is necessary because a complete inventory and appraisement of the assets must be prepared. During this time you, as PR, will also complete the clean out of the decedent’s residence and deal with the decedent’s personal property with our guidance.
DOCUMENT INTENSIVE PROCESS
The probate process is full of forms and hand-drafted legal pleadings that are best completed by a Sacramento probate attorney, as they must be properly filed with the court and mailed to various interested parties. From time to time throughout the process, documents will be submitted and reviewed by court representatives or the probate Judge. Additionally there are notices and filings that need to be sent to various government agencies and we will help get those done in a timely fashion. Once all materials are in order as required under the California Probate Code and local court rules, a court order will be prepared and submitted to the Judge for signature. In most circumstances, you will never need to attend a Court hearing as we will handle them for you.
HOW IS ESTATE DISTRIBUTED?
Final distribution of the estate will probably be made soon after a federal estate tax return is filed (usually nine months after the date of death) if one is required. When all debts and taxes have been paid and the estate is ready for final distribution, we will prepare a final account and report for your signature as PR, based upon your record of receipts and disbursements. The account and report will ask the court to order distribution of the remaining estate assets to the beneficiaries. About one month after the account and report are filed, the court will hold a hearing. At that time, the court will likely enter a judgment settling the account and report and ordering distribution of the balance of the estate assets. We will then help you distribute the assets and obtain the necessary receipts. Once all the receipts are filed we will help you obtain the final discharge and your job will be done.
COMMISSIONS AND FEES
Our rates for ordinary legal services relating to the probate of an estate are guided by California statute as a percentage of the gross probate estate. For extraordinary services, the Probate Code provides that the court may set whatever fee it considers proper. In cases we represent the PR a request to the Court for extraordinary fees is unusual. The ordinary fee structure, for both the attorney and the PR is, based on the gross value of the estate, is as follows:
4% of the estate between $0 and $100,000
3% of the estate between $100,001 and $200,000
2% of the estate between $201,000 and $1,000,000
1% of the estate between $1,000,000 and $10,000,000
.5% of the estate between $10,000,001 and $25,000,000
A reasonable amount, to be determined by the Court for any estates over $25,000,000.
Use our probate calculator to see how expensive your probate might be.
* * * Attorney fees get paid at the end in most standard probate cases * * *
We hope that this general outline regarding the probate process is helpful. We pride ourselves on professional, efficient and fair priced legal service. If you have a need to hire a Sacramento probate attorney remember that we will take good care of you and your family. As each probate is unique, not all matters discussed may apply in a particular instance and some issues that come up may not have been addressed here. If you have any questions concerning probate, or estate planning in general, please do not hesitate to contact us for representing you in the following Counties and Cities of California, viz., Sacramento, Roseville, Elk Grove, Davis, EI Dorado Hills, Stockton, Placer, Yolo, Ei Dorodo and San Joaquin, Oakland, San Francisco and Los Angeles to set up an appointment.