When a decedent dies with a valid will, but without a Living Trust, their estate is subject to Probate.
Probate translated literally means “to prove the will.”
The Probate process, in it’s origin, was designed to prove that the decedent actually had died, and that the will in question was the actual will belonging to the deceased.
Today, Probate is best described as a court-supervised process by which a decedent’s assets are gathered, valued, and distributed according to the decedent’s last wishes, as stated in his or her will.
In addition, the probate process also requires a formal process by which all creditors (or potential creditors) of the deceased, known and unknown, are notified of the death, and given the opportunity to make a claim on the decedent’s estate.
Due to the formal, court-supervised nature of the Probate process, the average length of a probate case can be anywhere from 9 to 18 months, or even longer, depending on the complexity of the case and a variety of issues.
Disadvantages of Probate
The Probate System has a number of Disadvantages, which we discuss in a series of blog posts entitled, Why Avoid Probate?
Some of the Disadvantages we examine include:
- The extremely High Cost of Probate
- The public nature of the proceedings
- The length of time involved in Probating an Estate
- The bureaucratic, Court-driven nature of the Probate process
- The requirement for Minor Children to be put on a Family Allowance
Probate Fees
Currently, California Probate Code § 10800 sets the compensation for the Personal Representative – and for the Attorney for the Personal Representative – of an Estate that is subject to Probate as follows:
· Four percent on the first one hundred thousand dollars ($100,000).
· Three percent on the next one hundred thousand dollars ($100,000).
· Two percent on the next eight hundred thousand dollars ($800,000).
· One percent on the next nine million dollars ($9,000,000).
· One-half of one percent on the next fifteen million dollars ($15,000,000).
· Above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the Court.
To see how this Fee Schedule is applied to a typical $1 million estate, follow the link to our article on The extremely High Cost of Probate.
It’s no wonder why people are anxious to avoid the Probate process whenever possible!
Assets Not Ordinarily Subject to Probate
The primary way to avoid Probate is through the use of a properly funded Living Trust.
However, certain assets are not normally subject to Probate, and – under certain circumstances – may pass outside of the Probate process.
Conclusion
Through careful planning of your Estate, which may include a properly-funded Living Trust, you may be able to spare your family members and loved ones from having to slog through the Probate process for months on end.
In every Estate that we have worked on, the primary concern of the beneficiaries is that the whole estate administration process is wrapped up as quickly and efficiently as possible – while minimizing costs and taxes.
Proper Estate Planning can help you and your family achieve these objectives.
Please Contact Our Firm to discuss how we may serve your family’s needs.