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Then is Probate bad thing?

Not necessarily! Probate gets a bad reputation due to the costs and the lack of privacy with the public nature of Court proceedings that reveal both the deceased’s property and family structure.  However, probate administration under Court supervision is both predictable and transparent.  Here are some unique benefits worth considering:

PERSONAL REPRESENTATIVE SELECTION PROCESS. The first step in probate administration is appointment of a personal representative. If the deceased made a Will, the person appointed is based on the Will but still must be approved by the Court. If there is no Will, family members can petition the court to be selected as personal representative; and, if another family member disagrees with the person asking to be appointed then they can object. By contrast, when an estate is settled through a living trust, the family members generally don’t have a choice about is in charge because that person is appointed based on the trust terms and without Court orders.

FLEXIBLE TIMING. Whereas the trustee of a trust must take over the deceased’s property right away due to the strict fiduciary responsibility that comes with the job, there is no deadline for starting a probate. Although a Will must be delivered to the Clerk of Court within 30 days after the person’s death, the first petition for probate can be filed 5, 10, even 20 years after a person’s death.

TRANSPARENCY. Before probate property can be distributed, the personal representative must appraise the property and notify potential creditors. Creditor claims are only paid when they are approved by the personal representative and legally enforceable debts against the estate. The Court will only allow distribution of the estate upon a full accounting unless the accounting is waived by all the heirs or beneficiaries. Contrast that process with trust administration, which is handled without Court supervision and without automatic accountability. Even though California law requires the deceased’s family members and beneficiaries to be notified of their rights by the trustee, many people are not aware of the requirements and so a trustee can easily ignore the law and the rights of the beneficiaries.

SECURITY AGAINST LOSS. Before the personal representative can obtain the documentation showing their authority, a form of insurance must generally be obtained to protect the interests of the heirs or beneficiaries. There are two ways to satisfy the requirement. The first is for the personal representative to post a bond in whatever amount the Court deems sufficient based on the value of the estate and the amount of unsecured debt. With a bond, the bond company becomes obligated to pay damages to cover any loss caused by the personal representative. The second way is a Court-blocked account. Instead of requiring a bond, the Court can allow money to be deposited into a special account where it can only be touched with specific Court approval.

Probate transfers the deceased’s assets to the heirs or beneficiaries in much the same way and over a similar length of time as a trust would but requires Court oversight. As explained above, that may or may not really be a bad thing!

Probate Fee Calculator

What is the cost of probate?

Type a number here that represents the total combined value of all estate assets without subtracting liabilities.
This is the "statutory fee" calculated under the California Probate Code.
If both the representative and the attorney take compensation, the total fee is twice the statutory fee.

Administrative and legal fees for probate are based on a legal formula demonstrated in the Probate Fee Calculator.  The personal representative is entitled to a statutory fee for "ordinary services" based on the gross estate.  The personal representative's attorney is also entitled an equal statutory fee for "ordinary services."  Either the personal representative or the attorney or both can also request "extraordinary fees" for providing additional services not considered to be included within the statutory fee.  Extraordinary services include:

  • Selling, leasing, exchanging, financing, or foreclosing property

  • Carrying on decedent's business

  • Preparing tax returns

  • Handling audits or litigation

  • Legal services in connection with the above

  • Litigation undertaken to benefit the estate or to protect its interests

  • Extraordinary efforts to locate estate assets

  • Coordination of ancillary administration

  • Accounting for a deceased, incapacitated, or absconded personal representative under Probate Code § 10953

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