Is Probate Necessary?

If your loved one created a comprehensive, legally enforceable estate plan during their lifetime, this ensures that the assets and property within their estate will be managed, preserved, and distributed according to the wishes and instructions they described in the plan. If your loved one did not perform any estate planning, it is necessary for you to undergo probate proceedings to verify the will, carry out the terms it contains, and transfer the appropriate assets to the named beneficiaries. In cases where the gross value of the probate estate is under $150,000, you may qualify for a simplified probate process or potentially avoid probate altogether.

Assets owned in joint tenancy with another person, as survivorship community property with a spouse, held in a living trust on behalf of a trustee, or featuring a named payable-on-death beneficiary are not required to go through probate to be distributed to beneficiaries. Assets inherited by a surviving spouse may qualify for a streamlined procedure with a Spousal (or Domestic Partner) Property Petition. The probate court must approve this petition, but the process is simple and takes far less time than the full probate proceedings.

How Does the Probate Process Work?

If probate is necessary to administer the estate, the executor named in the will must initiate the process. If the decedent did not write a will, the will cannot be located, or the person named as executor is not available to serve in this role, then someone else, typically a family member, must request that the court appoint them as an administrator of the estate. This position lasts approximately six months to a year, but it may be longer or shorter depending on the specific circumstances of the case.

The probate process begins when the executor files the will with the probate court in the county where the decedent resided, along with a Petition for Probate document and a filing fee. The probate court will examine the will to determine if it is valid, often by requesting that witnesses sign and submit a sworn statement. If the will is valid, the court will issue Letters Testamentary or Letters of Administration to officially appoint the executor and give them legal authority to control the assets and property within the estate.

After being granted this authority, the executor must start to gather the decedent’s assets to make an inventory that includes appraisals of all property and file this information with the court. This preparation also involves applying for a taxpayer ID number on behalf of the estate, opening a bank account for the estate, and organizing information regarding all bills and benefits. Then, the executor must provide formal notices to beneficiaries, creditors, and certain family members who may have an interest in the estate.

Creditors are given four months to file their claims, but in many cases, a formal claim is not required, and the executor will simply pay the outstanding bills from the funds in the estate. If these funds are not sufficient to cover all valid claims, state law stipulates which claims must be paid from selling the assets and property in the estate and using the proceeds to cover these debts. Most of the time, the executor can approve or reject creditor claims, sell estate property, and pay taxes without involvement from the probate court, but other acts, such as selling real estate, do require court approval.

It is the executor’s responsibility to safeguard all assets and property within the estate during the probate process, such as keeping a home insured and maintained and protecting valuable items from theft or damage. After all outstanding bills and taxes have been paid, the executor requests that the probate court close the estate. At this time, the executor can distribute the assets to the designated beneficiaries.

Can You Do Probate Without a Lawyer in California?

It is legally possible to handle probate proceedings on your own, but this approach is rarely recommended. Unless the estate is very small and simple, there are several complicated issues involved in probate that most non-legal professionals do not have the knowledge, resources, or experience to manage effectively. Attempting to do so on your own leaves significant room for error that can cause the process to take longer, and beneficiaries cannot receive their portion of the estate until the process has finished. Retaining the services of a Los Angeles probate lawyer ensures you complete all necessary steps fully, accurately, and on time, to avoid costly delays, particularly when the beneficiaries need prompt access to the inherited assets.

What Does a Probate Attorney Do for You?

If you have been designated a personal representative of the decedent’s estate, a Los Angeles probate attorney can help you with the following tasks:

• Informing you of your rights and responsibilities
• Offering legal guidance and advice to streamline the process
• Accurately preparing all documents required for the administration of the estate and filing them within the required time frame
• Creating an inventory of the assets and property within the estate
• Coordinating an appraisal to determine the value of the assets and property based on current fair market value
• Reviewing bills, account statements, and other financial documents to calculate outstanding debts against the estate
• Notifying any creditors that may be entitled to file claims against the estate
• Paying debts, mortgages, utilities, credit card balances, medical bills, and all other financial obligations
• Selling assets to pay these obligations if the estate’s liquid assets are insufficient
• Collecting the proceeds from payable-on-death assets such as insurance policies and retirement accounts
• Filing income tax returns
• Determining if the estate owes a federal income tax
• Notifying beneficiaries that they hold an interest in the estate
• Transferring assets to beneficiaries as stipulated in the estate plan
• Resolving disputes between beneficiaries, creditors, and other relevant parties
• Pursuing litigation on behalf of the estate, if necessary
• Assisting with any other issues that arise during the administration of the estate

How Much Do Probate Lawyers Usually Charge?

A Los Angeles probate lawyer can charge for representation based on several factors, such as the estate’s total value, the complexity of distributing the assets to beneficiaries and creditors, and the length of time it takes for the probate proceedings to conclude. Most probate lawyers in California adhere to a sliding scale of percentages that assigns the attorney’s statutory fee as a portion of the estate’s value, but they can alternatively decide to charge a flat fee or bill hourly for their services. When billing hourly, you can expect the cost to increase as the attorney spends more time dedicated to your case. Before you sign an agreement, ask the attorney to explain their billing policies, provide an educated guess for how long the case may take to resolve, and, if possible, offer an estimate for what you will be charged after the case concludes.

What Percentage Does a Probate Lawyer Get?

If the Los Angeles probate attorney you choose charges according to the sliding scale of percentages, the Probate Court allows them to charge:

• 4% of the first $100,000 of the probate estate’s gross value
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $9 million
• 5% of the next $15 million

Cases that involve large estates valued at over $25 million typically require the probate court to calculate a reasonable amount for the attorney fees.

Contact Us Today

If you have recently lost a loved one and been named as an executor of their estate, you should hire a Los Angeles probate lawyer for legal representation. You will be held legally responsible for fulfilling the obligations listed above, and it can become extremely confusing to navigate these responsibilities on your own. Sweeney Law Group can guide you through the probate process, ensure you handle every task according to the decedent’s wishes and state law, and help you resolve any complicated issues that may arise. Contact us today to discuss your case.