Probate FAQ

Frequently asked questions about Probate

Is a formal probate always necessary?

No, and hopefully it won’t be needed in your family’s case. Simple procedures exist for passing a decedent’s property to a surviving spouse. If the decedent was not married and they have a good estate plan, formal probate should not be necessary. Only estates where the total value of decedent’s “probate property” is over $100,000 will require a formal probate. Among assets that are not considered “probate property” are assets in a trust, joint tenancy property, and assets that have a named beneficiary. Property that is not “probate property,” is not counted towards the $100,000 limit. Example: Fred dies leaving a will stating that his two adult children share his estate equally. Fred has a trust, and has placed his home in the trust. He has two $30,000 Certificates of Deposit, each in joint tenancy with one of his children, and a savings account with $80,000 in his name alone. Fred’s $80,000 in savings is the only “probate” property in his estate. The house is in the trust, and the CDs have surviving joint tenants, so they are not counted as “probate property.” Since the remaining $80,000 is less than the $100,000 threshold, Fred’s children will be able to take title upon Fred’s death without the time and expense of a formal probate. (Fred was cutting it close! He should have placed the savings account in the name of the trust, too!) If you have a deceased family member or friend, we can assist you in ascertaining if their estate, like Fred’s, is eligible for one of the non-formal “summary proceedings.” If you desire, we can draft any declaration or petitions required…or advise you on how to do this yourself. Unlike a formal probate, many people can, with a bit of direction, handle an informal or “summary” probate proceeding themselves.

If a formal probate is required, does the executor/administrator need an attorney?

 

There’s no rule that requires an administrator or executor to hire an attorney. It is relatively rare, however, for someone to try and represent themselves in a formal probate. Those who do invariably end up with multiple delays and a strong sense of exasperation. Many eventually end up hiring an attorney, having lost time and peace of mind. There are areas of the law where a layperson may be able to do a good job and save a fair amount of money in the process. Unfortunately, a formal probate is not one of them. The reason is the abundance of technical detail in the required court hearings and interim proceedings. Failure to fulfill any one of many requirements will likely result in the court finding “defects” and continuing the hearing. The simple fact is, if you try to do this yourself, you may succeed…eventually. You are almost assured, however, of a process unnecessarily drawn out many months…or more. Anyone contemplating handling their own probate should also be aware that some of the decisions made during the administration of an estate can have far-reaching financial impacts for the beneficiaries and the executor/administrator. Fortunately, the fees for a probate attorney are not paid by the executor/administrator, but by the estate itself; and only through the final distribution at the close of the probate. You should be able to get through the entire process before payment any of attorney’s fees.

 

Can our regular family attorney represent us in the probate?

 

Of course, and they may be an excellent choice. Their familiarity with the family may be very helpful. The attorney who drafted the deceased’s estate plan may also be a good choice. However, we urge you ask them how many probate administrations they’ve done, how many they usually do in a year, and when their last formal probate was. If you get good answers, by all means…retain them. If they lack significant probate experience, we suggest you look further. For the very reason we recommend you do not try and do a formal probate yourself, we recommend you get experienced probate counsel: probates are highly technical proceedings. Lack of experience often results in errors, omissions, and delays. Since the fee of an attorney in a probate is set by law, and based on a percentage of the estate, an experienced probate attorney costs exactly the same as an inexperienced one. Experience equals speed and efficiency, as well as quality of advice given and decisions made.

 

How fast can we get through probate and distribute the estate?

 

Usually six (6) to seven (7) months from the time of your initial interview is about as fast as a formal probate can go. There is about a 6-week delay from the time the initial Petition for Probate is filed until the first court hearing. This is followed by a four (4) month period for the filing of creditor claims that is required by law. Immediately after the end of the claim period, one can file for authority to distribute to the heirs. There will be approximately another six (6) weeks before the court hears that request (click HERE for a timeline of the probate process). Without knowing what may arise in a specific probate, no one can guarantee how long a probate will take. An experienced probate attorney, however, will not be bogged down with unnecessary delays. It is our goal to handle your probate efficiently, and to distribute to heirs promptly. In cases where there is an unavoidable delay or particular need, we can often get an early partial distribution of up to 50% of the estate.

San Diego Elder Law Center
Philip P. Lindsley, JD., CELA
Certified Elder Law Attorney
(619) 235-4357
e-Mail

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