In the real world, when is probate needed?

Probate is needed when someone dies, and you need to access or take control of the decedent’s assets.

What does the probate court do?

The court will appoint an individual, known as the personal representative, to be legally responsible for managing the decedent’s estate, which includes their assets. This representative will receive a document called “letters of administration” which enables them to access the decedent’s assets.

For example, if there is a financial account solely in the decedent’s name, you’ll need a way to access that account; the bank won’t allow anyone not named on the account to access it. Therefore, you must petition the probate court to be appointed as the personal representative of the estate. If your petition is granted, a probate judge will sign an order naming you as the personal representative and provide you with letters of administration. You would then provide the letters of administration to the financial institution and ask them to retitle the account in your name as the personal representative of the estate. Now you have access to the account.

The court has named me “personal representative”. What now?

As the personal representative of the estate, you are legally required to manage various affairs related to the estate. This includes finding and notifying the heirs of the estate, paying creditors, filing taxes, safeguarding estate assets, assessing the value of estate assets, and informing the beneficiaries of that value. Additionally, among additional responsibilities, you must file an inventory and appraisal with the court. You have a fiduciary duty to complete these tasks within a year of your appointment. If you do not complete them, you will have violated your fiduciary duty and can be held personally responsible by the court for any damages that result from your inaction.

Is probate always necessary?

If you are the spouse of the decedent and your financial accounts are joint accounts or you are the named beneficiary on insurance policies and accounts, you will generally not need to go through probate. You can file an affidavit to remove your deceased spouse’s name from a property deed and your bank will change the name on your accounts. If you are the spouse and a vehicle was owned in the decedent’s name, you can petition the DMV to change the title and registration name for the vehicle. If you have AAA, after 40 days, you can take the death certificate and your identification to AAA and they will issue a new title to you in your name if you are the spouse of the decedent.

Assets that do not need to go through the probate process include:

1. Assets owned by a trust: For an asset to be owned by a trust, its title must reflect that the trust is the owner. For instance, in the case of real estate, the trust should be listed as the owner of the property on the deed.
2. Financial Accounts: Financial accounts like retirement accounts, insurance policies, or brokerage accounts that have a named or designated beneficiary (such as “Payable on Death” or “Transfer on Death”) do not need to go through probate. It is reasonable to present your identification and ask a bank or financial institution if you are the beneficiary on an account. If you are not the named beneficiary, they will not tell you who is named unless you have Letters from the probate court. Sometimes a financial institution will have a default beneficiary succession that they will use if a person dies and has not designated a beneficiary. Ask if the bank or other institution uses default beneficiaries and let them know how you are related to the decedent. However, if an account does not have a beneficiary listed and is not owned by a trust, it will likely be subject to the probate process.
3. Jointly Owned Assets: Assets jointly owned, like bank accounts with two owners listed on title, generally do not require probate.

My spouse died and had some accounts in his/her own name only, what can I do?

Small Estate Affidavit:

If the total value of the deceased’s probatable assets does not exceed $205,800, you can use the small estate affidavit process to take control of the assets. The best part is that you can often complete this process without hiring an attorney.

A notarized small estate affidavit is a legal document in which an individual swears, under penalty of perjury, that they are legally entitled to the deceased’s assets and that the total value of the probatable assets does not exceed $208,500. The Sacramento County Law Library has excellent instructions for completing a small estate affidavit: https://saclaw.org/resource_library/affidavit-for-collection-of-personal-property-2/

If the asset is real property (a home or real estate) a small estate affidavit cannot be used but if the real estate does not have a high value, the Sacramento Law Library has information regarding alternatives to probate.

If the assets are more than a small bank or investment account, probate is probably necessary.

How long does Probate take?

Probate should be completed within 1 year after the court appoints the Personal Representative (Letters are issued).

First 2 months:

• It generally takes about 2 months to obtain Letters to Administer the Estate, Order for Probate and a bond to be issued. As soon as the first hearing is scheduled, beneficiaries and heirs are notified, and notice is published in a local newspaper.
• The personal representative pays any essential expenses of the estate for the first month or two until appointed by the Court and estate funds can be accessed. At this point, the Personal Representative can be reimbursed from the estate.

Next 6 months:

• After Letters are issued, creditors can be noticed and they have 120 days (4 months) to respond. After Letters are issued, an estate account can be opened so that estate bills can be paid from this account. Property can be appraised by probate referee.

Final 6 months:

• CPA will prepare final federal tax return for the estate
• Property will be sold at price at least 90% of probate referee’s appraisal amount
• Court hearing regarding sale if necessary.
• Personal representative continues to pay bills of estate.
• Petition for Final Distribution and Order for Distribution signed by court.
• Order for discharge of probate by court.
• Distribution to beneficiaries, Attorney is paid, Personal Representative is paid

How much does Probate cost?

Probate can cost 4% – 7% and sometimes more of the total value of the estate.

Probate fees are set by California law and may include:

• Court filing fees
• Publishing probate notice in local newspaper
• Appraisal fees if there is a home or other real estate
• Surety bond
• Probate referee
• Fees to obtain certified copies of court documents, death certificates
• Executor’s or Personal Representative’s fee
• Accounting fee
• Legal fee

How much does an attorney cost?

Fees are set by the State of California:

• 4% on first $100,000 value of estate
• 3 % on the next $100,000 value
• 2% on the next $800,000 value
• 1% on the next $9,000,000 value
• 1/2 of 1% on the next $15,000,000 value
• For estates valued at greater than $25 million, the court will determine a reasonable fee amount.

Worried About Up Front Fees?

If you have concerns about upfront costs, please be assured that Attorney Cross may be able to assist. If all beneficiaries agree to waive the bond requirement, Attorney Cross is willing to advance the necessary filing fees.  Please note that this arrangement is considered on a case-by-case basis, and you will need to discuss the specifics directly with Attorney Cross.

Why Hire Attorney Cross? FAQs

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