After a loved one passes away, the last thing you want to do is get involved in a complicated legal and financial process. Here I break down the important terms, timeline, cost, and laws that may affect you.
Gavel on a table with lawyer and client discussing contract.
The Basics: People & Terms
Before we get into the timeline, let us break down the main players and how they affect the timeline.
- The executor or personal representative: An executor is a person named in the will of the deceased to administer the estate. They are in charge of the distribution of the assets per the will, or to the heirs if no will is present. They will receive “letters of testamentary,” which will give them the authority to handle interactions legally and finically on behalf of the estate.
- The beneficiaries: Beneficiaries are those who inherit the estate or assets of the estate. Even if they are not named in the will (if one is present), relatives maybe in this category if they have a potential claim.
- The creditors: Creditors are to be notified of the probate process and are allowed to collect any debt the estate owes them.
- Intestate: A case where someone dies without a will.
- Intestacy: State laws determining how to distribute such estates.
- If someone dies without a will, intestacy laws will determine which relatives are next in line.
- Small estate affidavit, summary probate, and/or summary administration: Documents or processes that can allow you to skip or shorten certain probate aspects like distributing property without a lengthy court process. This depends on the size of the estate and the state laws.
Full Timeline: What Each Step Requires
Keep in mind that the probate process and timeline will vary greatly depending on the estate’s size and location.
1. Open Probate
The executor cannot immediately start executing the will and giving the china to Lucy; they have to file a petition with the probate court to open the process and prove that the will is legally valid before handling the estate. Since some might question the validity of the will, this is a vital step.
2. Send Notices
Once the will is proven and the executor is officially appointed, it is time to send notices to all interested parties. The executor must send a notice or make a good-faith effort to notify, like posting in a newspaper.
The interested parties include:
- The beneficiaries
- Next of kin, as specified by your state’s intestacy laws
- In California, next of kin are usually the decedent’s closest living family members
If the will is uncontested and all interested parties agree to the terms specified in the will, then the probate court only has to review and sign the paperwork. If, however, someone disagrees or feels the will is invalid, the judge will have to be more involved.
Typically, creditors only have six to nine months to submit a claim for any outstanding debts, and the court generally does not intervene. When it does, it is either because the outstanding debt is so great that some assets will need to be sold, or the executor wants to deny the creditors’ claim.
3. Take Inventory
Before the executor can start dividing the assets, they must take inventory of the assets and their value, ranging from a simple bank account check to evaluating the value of jewelry or stocks.
Not all of the assets are eligible to be part of probate. Non-probate property bypasses the process and goes directly to beneficiaries or co-owners, despite the will. Those include:
- Assets titled in the name of a trust or designating a trust as beneficiary-
- In this case, the trustee named in the trust is authorized to distribute trust assets to beneficiaries.
- Property with a named beneficiary-
- These are things like life insurance, 401(k)s, pensions, etc…
- Property owned jointly, with survivorship rights-
- If one partner dies, the other partner automatically gets their interest in the property. Married couples often have a joint tenancy with the right of survivorship or the tenancy by the entirety.
4. Distribute Assets
Distributing the assets is not as simple as giving the china to Lucy and the car to George: going through the will’s specifications and making sure everything is done right takes time.
Part of distributing the assets is paying debts and taxes, submitting policy claims, and ensuring that the accounts that are no longer necessary are closed. If money is left to a minor, they will have to create a trust with a court-appointed trustee to manage the trust, which will extend the probate timeline.
Due to the strenuous nature of the work, executors can receive compensation depending on state laws. According to William Sweeney, a California-based probate attorney, the executor usually receives 4% on the first $100,000, 3% on the next $100,000, and 2% on the next $800,000 under California Probate Code.
5. Close the Estate
After the probate process is complete, it is time to file a petition to dissolve the estate and conclude the probate process. The closing affidavit is a formal notice that assets have been distributed, discarded, or sold, and fees due to the executor and creditors have been paid. Once this is complete, the executor will be released from their duties.
How Much Will This Cost?
- Attorney fees: While these will vary by state and size of the estate, California sets the fees by statute. Here are the maximum fees, according to US News.
- 4% of the first $100,000 of the estate.
- 3% of the next $100,000.
- 2% of the next $800,000.
- 1% of the next $9 million.
- 0.5% of the next $15 million.
So, for example, a $1 million estate would cost $23,000 in attorney fees.
- Executor compensation. As discussed prior, under the California Probate Code executors can receive compensation in the state of California.
- 4% on the first $100,000,
- 3% on the next $100,000,
- 2% on the next $800,000
This means that a $1 million estate will pay up to $23,000 in executor’s fee.
- Court fees. Courts have filing and paperwork fees throughout the probate process. The filing fee in California is $435
Probate can be a long, complicated, and emotionally draining process. The combined complexities of your estate executors’ duties and dealing with your emotional loss of a family member or friend can leave you feeling exhausted and overwhelmed.
As a top producing agent with 20+ years of experience in the East Bay, I have guided hundreds of clients through the probate process in the Greater San Francisco Bay area and the counties of Alameda and Contra Costa. As a certified probate real estate specialist, I am committed to giving you a clear picture of all your options so that you feel you are making the best decisions every step of the way during your probate settlement.