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Question: Does everyone have to go through a formal probate when they die?
Answer: No. Not all property is considered a probate asset. Property that is in joint tenancy, or has a beneficiary designation, is not considered probate property. Each of these will pass to the designated survivors or beneficiaries will minimal paperwork. Property in a trust is also not considered probate property and will avoid probate. There are, however, still required steps for a trust administration, though typically much simpler and less expensive than a formal probate. Most Probate Attorneys also handle Trust Administrations.
For assets that are considered probate property, if a deceased person’s estate does not exceed the statutory limit of $166,250 of countable probate assets, there may be a summary proceeding or other alternative available. This can be as simple as the heirs or beneficiaries collecting a deceased person’s property using an affidavit.
Probate Questions and Answers
8 answers to commonly asked probate questions
Question: How does the Court decide where the property goes?
Answer: If a person dies with a Will or Trust, their estate will be administered and distributed to the people and in the shares provided in the Will or Trust. If there is no Will or Trust,the Court will distribute the estate according to the laws of intestate succession.
Question: What is Intestate Succession?
Answer: When a person has no document disposing their property, something still needs to happen. Intestate Succession determines what that is. These laws guess as to who the decedent would have wanted to inherit the property. Intestate Succession is based on the closeness of the familial relationship, and policy judgments by the State. These assumptions by the State Legislature may or may not be what the person would have wished, but it is how the property will pass.
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Question: What is Probate?
Answer: Answer: Probate is a legal proceeding before the Court to transfer a deceased person’s assets to their rightful heirs or beneficiaries. There are both “formal” and “summary” probate proceedings. Some of the summary proceedings are quite simple and without Court involvement. One should usually use a summary proceeding if you qualify.
Question: How much does a formal probate cost?
Answer: Answer: Answer: The payment of attorney’s fees in a probate, known as statutory fees, are determined by law. Statutory fees are calculated as follows:
- 4.0% of the first $100,000
- 3.0% of the next $100,000
- 2.0% of the next $800,000
- 1.0% of the next $9,000,000
- 0.5% of the next $15,000,000
- For estates over $25,000,000, reasonable compensation is at the discretion of the Court.
For example, the statutory fee for an estate worth $300,000 would be $9,000. The personal representative (the individual managing the probate) is also entitled to the same fee. If the attorney performs work outside of the statutory fee, known as extraordinary work, there may be additional charges for that as well. Extraordianry work may include selling real property or settling unpaid IRS debts or liens.
The fact that the fee is set by law, means that the most experienced and the least experienced attorney will cost that same. This is a great opportunity for the consumer to ensure their probate goes as fast as possible, and without missing important steps. San Diego Elder Law Center has vast expertise and experience in probate. All probate matters in our office are overseen by Certified Elder Law Attorney Philip P. Lindsley, who is also a Certified Specialist in Estate Planning, Trusts, and Probate. He has 40 years of legal experience in the probate field. All of our attorneys are very well experienced in Probate. We are well-equipped to handle complex probate matters with compassion and efficiency. Statutory fees for probate matters are the same, regardless of which attorney you hire. Take a look at our client reviews, both on this website and in social media. Why not hire the best?
If you believe a probate is necessary for someone you have lost, please give us a call at (619) 235-4357.
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Question: Can a Trust avoid probate?
Answer: Answer: Yes, as long as it is properly funded. Assets that are held in a Trust are considered owned by the Trust rather than the individual who established the Trust. Once the person who established the Trust passes away, a Successor Trustee will administer the Trust and distribute assets according to the Trust’s provisions. This is known as a Trust Administration and we can help you with this process as well.
Question: Can a Will avoid a formal probate?
Answer: Not by itself. In an estate where there is a Will, probate may still be avoidable if the estate qualifies for one of the “summary proceedings” discussed above. Non-probate property also will pass without reference to the Will. Examples include, but are not limited to, pay-on-death accounts, designated beneficiaries of accounts, or accounts held in joint tenancy with another individual.
Question: How long does a probate administration take?
Answer: It depends. If you are eligible for a summary proceeding, it may not take long at all. If it is a formal probate, it’s not fast. Probates vary widely in their complexity and circumstances. The shortest possible time is around six months after the case is initiated (filed with the Court). A more typical expectation is a year to a year and a half. There are laws about allowing time for creditors to file a claim and that time cannot be shortened. If there are tax issues or disagreements among family members, the probate will take even longer. An experienced Probate Attorney will be able to process this much sooner than a general practitioner, or someone with less experience. This might even include petitioning the Court to allow early distributions.