Probate Administration

A Will is a legal document that provides how your money and property will be distributed upon your death.  It can outline certain other things as well, like care for minor dependents.  It only goes into effect after you die.

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Probate is the legal process that oversees someone’s estate after they pass. The use of this legal process is not required in every case.  For example, if the Decedent had one or more Trusts and has properly titled all property into a Trust, Probate can be avoided.  If not, the Probate Court will assist.

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The Probate process begins with a petition to the Probate Court requesting an appointment of a Personal Representative. If the Decedent dies with a Will, the petitioning person is typically the person named in the Will to be the Personal Representative for the Estate.  If there is no Will, then the petitioning person is typically an heir or other interested party.  

If there is a Will, the Probate Court determines the validity of the Will.  The Court will also appoint a Personal Representative for the estate.  The Personal Representative then has legal authority to settle claims against the estate and to disburse the Decedent’s property in accordance with the Will if one exists, or in accordance with intestate laws if one does not.  The Court will also issue “Letters Testamentary” to the Personal Representative to show his or her legal authority to deal with institutions that are holding title to the Decedent’s assets, such as financial institutions, the offices of the register of deeds, or the bureau of land conveyance.  

As next steps, the Personal Representative/Executor must: inventory and assess the assets of the estate; notify the heirs, beneficiaries, and creditors; pay the bills and taxes of the estate; sell, liquidate, and distribute the estate assets; and close the estate.  The process generally takes a year or more. 

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Heirs and Beneficiaries can be, but are not always, the same. Beneficiaries are those people or organizations that are designated in an estate plan to receive all or part of the estate. Heirs are those people – family members – who, by state law, would receive all or part of the estate in the absence of some guidance from the testator.  Such guidance is found in a Will or a Trust.

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Just as in all types of civil litigation, the law allows you to represent yourself in a Probate proceeding.  In some instances, the type and complexity of the assets and issues involved are within the scope of a layperson’s abilities.  Frequently they are not, and serving without the benefit of professional counsel and assistance can create more work and heartache.  We strongly recommend consulting with a seasoned Probate attorney to ensure that your best interests are represented. 

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A person’s estate is responsible for their debts after death. Creditors may bring claims to receive payment on debts owned at the time of the Decedent’s death. 

Once the Will is admitted to Probate, there may be claims made on the estate. Anyone may make a claim on the estate for money or property, either by petitioning the Personal Representative or the Court.  If the claim is rejected by the Personal Representative, the claimant may file a lawsuit to attempt to prove the validity of the claim and collect money from the estate.

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No. Assets titled only in the name of the Decedent at the time of death are subject to Probate.  Property held jointly, life insurance, retirement benefits, and other assets with named beneficiaries are not. 

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The lack of a certified Will creates an additional step in the Probate process.  When someone passes without a Will, or intestate, state succession laws determine what happens to the estate assets.  First, an interested party must petition the Probate Court to be named the Executor/Personal Representative.  Then, the Decedent’s legal heirs must first be identified and located as part of the Probate administration process.

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Intestacy refers to a person dying without a Will. If all of that person’s estate assets can pass by a non-probate transfer — joint accounts, pay-on-death accounts, joint tenancy, beneficiary designations — a Will is not required to transfer and distribute assets.  Trusts are also a common estate planning tool to avoid Probate Court.  As the assets are already titled in the name of the Trust, they do not need to be re-titled upon death. 

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The Personal Representative typically files an application to Probate a Will. However, any person who is entitled to assets from the estate may file an application.  

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While each estate is different, there are some common steps every Executor/Personal Representative will need to take:

• Learn and understand your duties and the process
• Petition the appropriate Probate Court for appointment and for issue of letters of administration (Letters Testamentary) 
• Inventory and appraise the estate assets
• Pay the debts and expenses of the estate, including taxes
• Sell or liquidate the estate assets
• Provide a detailed reporting of how the estate was handled 
• Make a final distribution to the beneficiaries or heirs
• Close the estate and request the Court discharge you from your duties

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There are a few things you should avoid doing, in order to keep yourself out of hot water:

• Don’t take action before Court Appointment or inconsistent with Court orders
• Don’t ignore the Estate’s Creditors and your duties to Creditors 
• Don’t forget to inventory and assess the estate property
• Don’t make distributions to Beneficiaries without Court approval
• Don’t pay yourself without Court approval 

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Not necessarily.  There are exceptions. The Decedent may have used one or more Will substitutes that make Probate unnecessary.  If all assets are titled jointly, or in one or more Trusts at the time of the death, then Probate may be avoided.  You do need to act timely to determine whether Probate can be avoided. 

If all of the property is held in a Trust, you may not need a Probate proceeding. If the property passes through insurance policies, pay-on-death accounts, joint tenancy with right of survivorship, beneficiary designations, or beneficiary deeds, you may not need to Probate a Will.

Also, if a person passed and left behind an estate of combined valued less than a certain threshold amount ($166,250/California- $100,000 Hawai’i), the estate can benefit from certain abbreviated Probate procedures, or can avoid Probate altogether.  You may be able to file for a Spousal or Domestic Partner Petition, a Petition to Determine Succession of Real Property, or a Small Estate Affidavit.   

In the absence of a Trust or other Will substitutes, however, the avoidance of Probate is unusual.  Even if you’re convinced Probate proceedings are not necessary, you should speak with an experienced Probate attorney to make sure. Failing to timely open Probate on an estate, where one is needed, can lead to much more expense down the road.

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Probate Administration can be a time consuming and complex job.  If you have been named the Personal Representative of an estate you have many tasks to complete.  If you accept this responsibility, you owe certain fiduciary duties to those involved in settling the estate.  For starters, you must: submit the Will to Probate Court; pay the estate debts; file tax returns; inventory and assess estate property: provide timely notices to those involved; respond to and settle any disputes; provide an accounting; distribute the property, and close the estate.  In most cases, even the most sophisticated business people seek some professional assistance.

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Not necessarily. There may be debts or tax claims that make taking the estate through the full Probate process a better option. If there are a lot of issues to handle, going through this full process puts you in a better position to deal with creditors and taxing authorities. If there are debts owed to the estate or other claims the estate can bring for the benefit of heirs and beneficiaries, it may be beneficial to open Probate proceedings.  For example, if the Deceased was an accident victim, the estate may be able to bring a wrongful death action and collect money for the benefit of surviving family members. Even though it is possible to avoid Probate, it is not always the best decision. 

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No. The estate will pay the debts of the estate before making a final distribution.  You may retain professional services as needed to administer the estate and the law also provides that you may be reasonably compensated for your services.   

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In all states, detailed statutes (laws) provide for the transfer of intestate (without a Will) assets to a person’s heirs. These statutes generally reflect what most people would want to do with their assets – providing priority to spouses, children, grandchildren, and other relatives. 

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Creditors of the Decedent are entitled to recover their debts against the assets of the estate owned by the Decedent at the time of the Decedent’s death.  If the Decedent’s assets are insufficient to pay all of the debts, any unpaid debts will be cancelled by the creditor.

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If the Decedent owned real property in more than one state, you may need to open Probate in more than one location. Beyond that, Probate should be opened where the Decedent was domiciled at the time of death. 

That may not be a simple answer.  If the Decedent was in the process of transitioning locations, or split time equally between locations, you may want to compare the Probate law of those respective states.

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Probate Court is a unique area of state law. You should look for someone with extensive experience with Probate administration, estate law, and dealing with the stress of grieving families. This firm strives to streamline the often-convoluted Probate process. 

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The California probate code (Probate Code Section 10810) sets a statutory fee for attorneys and the Personal Representatives/Executors for the administration of an estate valued over $166,250. Higher fees can be ordered by a court in special circumstances and for more complicated cases. 

These fees are calculated based on the value of property that is subject to probate administration, including the fair market value of real estate, business interests, investments, bank accounts, and personal property.  Other assets such as retirement accounts and life insurance policies are generally not subject to probate administration.

Please use the Probate Calculator found on our Resources Page to estimate Probate attorney’s fees and Personal Representative/Executor commissions for the administration of estates valued over $166,250, but less than $25,000,000.  A reasonable amount is determined by the court for amounts above $25,000,000.

Other states, including Hawai’i, do not have statutory-set fees and instead allow for a reasonable amount to be awarded to the Personal Representative/Executor and the probate attorney.  While there is no pre-set cost, you can estimate the expense based upon the amount of work that is needed.  For example, there may be real property or personal property to be inventoried, appraised, and sold.  There may be debts owed by the estate that must be paid, or claims brought by creditors that are disputed and may have to be litigated or settled out of court.  The complexity and amount of work involved determine the ultimate cost in attorney’s fees and Personal Representative commissions.

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Probate must be kept open for a certain period to allow potential creditors to present a claim against the estate. How much longer Probate lasts depends on how long it takes to settle those claims, liquidate the estate, prepare and file taxes, and distribute assets.

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No. You can accept or decline this responsibility.  You can also choose to resign. If the Will names a successor, that person will take over. If not, the Court will appoint someone.

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Yes.  While most personal representatives serve to honor the deceased person’s request, they are entitled to payment. Many, especially those who are inheriting a substantial amount, choose not to charge the estate for their services. The amount is regulated by state law and is governed by the value of the deceased person’s estate and the complexity of the Probate. 

Please use the Probate Calculator found on our Resources Page to estimate Probate attorney’s fees and Personal Representative/Executor commissions for estates probated in California.

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A lawyer can help you through the Probate process in many ways. 

• Help you get the Will admitted to Probate Court, have the personal representative appointed, and give notice to creditors and heirs.
• Assist in dealing with Will Contests – disputes over whether a Will was made when the person lacked testamentary capacity, or was of unsound mind, or was unduly influenced.
• Facilitate hiring other professionals, such as accountants to make sure that the appropriate notices are provided to the Internal Revenue Service.
• Make sure that appropriate creditor claims presented against the estate are paid or rejected.
• Ensure that all assets are inventoried and collected.

In Probate, there are many other types of issues and disputes that may arise. Depending upon the size of the estate, type of assets involved, and other factors, Probate can be simple or it can be complicated. The presence of creditors and issues over the interpretation of the Will can also raise complications in a Probate case. What a lawyer can do for your Probate matter depends upon the unique situation.

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 There are several reasons why a Will might be contested by an interested party.  

• The testator (Decedent) was not of sound mind at the time the document was executed because of some mental deficiency or illness. 
• The testator was unduly influenced by a third party, even if that party did not directly benefit from the change.   
• The testator was threatened or coerced into making changes, or having the Will made a certain way. 
• The Will does not comply with state law requirements. 
• The Will was forged.
• A more recent Will exists than the one being probated, or is subject to a codicil (Will amendment). 
• The Will’s terms are ambiguous which make it difficult to ascertain the testator’s intent.
• The Will’s terms violate law or public policy.

In viewing this list, understand that the Court will not replace the testator’s judgment just because the testator’s wishes may seem disagreeable, or even hurtful to you.  

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Take the copy to an experienced attorney who can help you determine if that version should be filed with the court.

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