Anatomy of a Probate Proceeding
There are many technical aspects of the court-supervised process of probate which are simply not an issue with administering a trust.
An oversimplified probate administration looks like this:
1. The process begins with the filing of a probate petition, posting a formal notice in a newspaper to notify the estate creditors, posing bond (unless waived by a will), and a hearing at which an estate representative is formally appointed if no objections are filed.
2. Next, the estate representative needs to serve all known creditors with blank creditors’ claims and invite them to partake in the estate assets. He or she needs to formally notify a number of state and federal agencies, have the estate assets valued by a court-appointed appraiser (known as the probate referee), and needs to prepare and file with the court an inventory and appraisal of the estate.
3. After all creditors’ claims issues are resolved and paid, all of the decedent’s assets are collected by the estate, and tax returns for the decedent and the estate filed, a final account and report with proposed distribution of the estate is presented to the probate judge for formal approval and for an court order of final distribution.
4. Upon remitting distributions to each heir and filing of receipts on distribution, the estate representative is formally discharged.
How Long Does Probate Take In California?
In California, a probate can take anywhere between twelve to sixteen months; it all depends on the complexity of the case. The estate may have to go through the probate process if the decedent had or didn’t have a will when they passed.
Please call us for assistance in deciding whether a probate is necessary. The Law Offices of Maria N. Jonsson has experience with a variety of probate cases. Contact us today to schedule a consultation!
Can Probate Be Avoided?
When one dies and leaves a Will or leaves no Will at all – their property generally goes through Probate.
Only property held in a living Trust avoids Probate completely. Therefore, setting up a comprehensive and properly drafted Estate Plan (including a living Trust) is critical to avoid putting your loved ones through Probate.
Sometimes, if the Decedent’s property does not exceed a certain threshold, it can be transferred to the heirs via the non-Probate process known as “Small Estate Administration.”
When the creator(s) of the Trust, known as the "Settlor(s)," pass away, the Trust becomes irrevocable, and the named Successor Trustee takes over the management of the Trust property and marshals the Trust assets pursuant to the terms of the Trust. Trusts are administered privately, meaning without court involvement. However, in the event of a Trust contest, such case is heard by the Probate Court.
The process of Probate and Trust Administration both consist of the transfer the decedent’s property, but Trust Administration is generally much more efficient and significantly less expensive. There are many technical aspects of the court-supervised process of Probate that are simply not required during a Trust Administration. The different treatment of creditors under Probate or Trust Administration is one stark example of how much more efficient Trust Administration can be compared to Probate.
How Much Does Probate Cost?
The cost of Probate is very high – this is because the Probate Fees are set by the California legislator, and are prescribed in the California Probate Code, as a percentage of the gross value of the Estate.
Finding Probate Records in California
Probate records are public (with very small exceptions), which means that anyone can search for, view, and obtain information on a Decedent’s Estate which is Probated. By contrast, Trust Administration is completely private.
The public is allowed to view case information and public documents if they were filed after February 5, 2007. The court charges a fee for name searches and downloads of court documents.
To download court documents for a fee from the Los Angeles Superior Court, click here.
Call Today to Get Started with your Probate Case
Probate is expensive—especially if you don’t retain legal guidance. When you hire the Law Offices of Maria N. Jonsson, PC, we can help you navigate the Probate process in the most time-efficient manner, which results in paying much less in various court costs, or for the cost of Bond.