Probate
“Conflict over an estate is another death to grieve… it delays the ultimate healing needed to move forward in life.” Miranda Palmer, LMFT
PROBATE
Losing a loved one is devastating. It’s even harder if a person you love dies without the proper planning in place. A lack of proper planning will likely require their estate to go through the probate process. Some of the things you may need to deal with right away include:
- Sell their home
- Pay medical expenses
- Prevent family members from wrongfully taking family belongings
- Pay creditors
- Taxes
- Collect life insurance
- Evict tenants
If there is a lack of proper planning, you’re going to need the court’s authority to deal with these issues. Probate is the court-supervised process of transferring assets from the name of a deceased person to his, her, or their heirs.
If the deceased (also known as the decedent) owned assets in his, her, or their individual name and such assets did not automatically transfer to the beneficiaries upon the decedent’s death (for example, pay-on-death or joint tenant accounts), then only a court has the authority to distribute such assets to the proper heirs.
Typically, a simple probate takes approximately nine to twelve months. The process goes like this:
The bulk of our practice is dedicated to probate court proceedings and real estate transactions throughout California. Our expertise allows our office to handle probate cases in any California county. We don’t always meet with our clients in person because our clients reside all over the United States.
At Bains Law, we believe that it’s important for you to be able to heal and not have to spend your time on figuring out the Probate Code. Our goal is to reduce the stress and anxiety of probate for you. If you’d like to talk about your problem specifically, feel free to contact us to schedule a consultation.
Below are links to some of the probate courts in which we regularly have court hearings. Each probate department has helpful tips on handling probates specific to their location:
Alameda County Sacramento County Santa Clara County
Probate FAQs
Do some assets avoid probate?
Absolutely! If the decedent owned accounts that had a named beneficiary (for example, life insurance or a retirement account), a joint tenancy asset, or asset held in a trust, those types of assets all avoid the probate process. However, it’s important to keep in mind that the decedent must have had proper documentation in place.
Are there different types of probate proceedings?
Yes. Depending on the nature of the asset and the size of the estate, there are a variety of probate procedures. Because there are a variety of procedures available depending on the nature of the assets and the complexity involved, it is important to have the advice of a competent attorney to help you decide which procedure is the most efficient and cost effective for you. Some examples of probate proceedings are a petition to determine succession (if total value of assets is less than $150k) to real or personal property; a spousal set aside; a petition to determine ownership of assets; or a petition for probate (if total value of assets is more than $150k).
Why doesn’t a will avoid probate?
Actually, if you have a will, the only way to give it any effect is through the probate court. Having a will insures that your property will pass according to your wishes, but it will be handled in the probate court. Having a Will is a good idea however. It allows you to name who will handle your estate, specify who will get your assets, and under what terms. With a properly drafted will, you can benefit children or grandchildren, set money aside for college, benefit charities, and leave assets to children (or others) with protection from their creditors.
What are probate fees and who pays for them?
Compensation of attorneys for the personal representative are set by the California Probate Code. The fees are based on a percentage of the gross value of the estate. The fees and costs are paid at the end of the probate, when it is time for the court to order a final distribution. If you want to take a look at the code section itself, it is Probate Code §§ 10800 – 10850.
How much does a consultation for a probate case cost?
A consultation for a probate is free. We’ll spend between ½ an hour to 45 minutes learning more about you, your situation, and explaining the next step in the probate process. Initial consultations can be done in person or over the phone.