What is a Probate?

Probate refers to the formal legal Court proceeding that occurs after a person has passed away to administer his or her estate.

When is a Probate required?

  • When a person dies with or without a Will and they own real property or the value of their assets in California exceed $150,000

During Probate, the court will:

  • Provide notice of the administration to all relatives to the 2nd degree

  • Carefully examine the Will for proper formalities and appoint an executor

  • If there is no Will, the Court will appoint a person, named an Administrator, to collect and distribute the deceased person’s estate according to State distribution statutes

  • Confirm the inventory of decedent’s assets and their value (all assets of the decedent will be formally inventoried with values and made public record)

  • Confirm the actions of the executor during the administration, confirming that all bills are paid, all income earned and recorded, and all sales and expenses are detailed to the Court in a formal accounting)

  • Approve distribution to beneficiaries and payment of attorney's and executor's fees (cannot occur without Court approval)

Common problems, concerns and benefits of Probate include:

  • The duration of the Probate

    • Probate proceedings in California can take anywhere from a minimum of 6 months to a year or more to be resolved. In fact, the more assets associated with a decedent’s estate and the more beneficiaries entitled to those assets, the longer the Probate proceedings are likely to last.  

  • The costs of a Probate

    • The costs of Probate are court costs, attorney's fees, and executor fees, averaging approximately 5% or more of the value of the estate. These costs are expensive and are paid out of the estate before taxes, and before distribution to the beneficiaries.

  • The public nature of a Probate

    • Probate proceedings are a part of public record, which means that anyone who wants to find out the details of an estate going through Probate can review the court records to see how much an estate is worth and who is getting what. This can create a variety of issues and challenges for people who may prefer that these matters remain private.

  • Claims Against The Estate Become Time-Barred

    • One benefit of Probate is that claims against the decedent or the estate must occur within a 4 month window or they are barred forever.  Conditions and exemptions apply and the attorneys at Walwick & Freed can assist with managing those situations.

Want to avoid a Probate for your family? The experienced attorneys at Walwick & Freed can show you how to avoid this lengthy, legal and public process called Probate.

If you find you have a Probate situation, contact Walwick & Freed and let us help you through this legal process.