Probate is a legal proceeding to manage the assets and financial responsibilities of a person who died.
If there is a valid will and testament, this serves as the blueprint for the probate process.
Without a will, the probate court decides who will administer the decedent’s estate. Learn more about ‘what happens if you die without a will?’ on our homepage.

The will must be proved valid before any assets can be distributed. If this was handled improperly during the estate planning process, you can immediately run into problems. The decedent can unknowingly invalidate their entire will by modifying a professionally-prepared document. You can learn more about this on our home page.

Once the will is deemed valid by the probate court, a legal representative is appointed to act on behalf of the estate. The decedent may have named their ‘executor’ in the will, but they are not required to accept this responsibility.
This personal representative is responsible for completing the probate process. With this role comes a great deal of accountability.

The following list is not exhaustive, but should give you a sense of what’s required. The personal representative must:

• locate, appraise and manage assets. If this includes decision-making about real estate or securities, this can take up to a year or longer.
• Setup an estate checking account to manage payments owed to the decedent.
• Determine who is getting what – and how much. If there is no will, you must defer to state law to identify eligible heirs and how big of a share they’re entitled to.
• Give official, legal notice to creditors (and potential creditors) of the probate proceeding and pay outstanding debts, valid claims against the estate, and funeral bills.
• Allocate estate funds to pay continuing expenses, including income and estate taxes.

Depending on the circumstances, they might find it wise to hire a probate lawyer.
Any debts owed by the estate are settled before awarding assets to the beneficiaries.

State law mandates the personal representative to complete probate within one year of their appointment.
An exception is made if they file for a federal estate tax. In this case, they will have 18 months to finish.
But there are circumstances that can delay this process past the deadline:

• The personal representative fails to finish probate on-time.
• A claim is filed with the court that challenges the validity of the will. This is called a Will Contest.
• Difficulty finding the beneficiaries.
• The size or complexity of the estate requires extra time.

Sometimes it can take years to resolve a probate case.

You are not required to hire an attorney for the probate process. If the Will is straight-forward, you might feel confident enough to handle it on your own.
However, an attorney will be helpful to meet all the deadlines, avoid mistakes, and save you the hassle of going to court.

An attorney can also be valuable to mediate disagreements between beneficiaries and family members. And, if you’re the personal representative, the attorney will act on behalf of your interests.

In California, probate hearings are held in the county where the decedent lived at the time of their death.
For example; if the decedent resided in Encinitas, the probate case will be held in the Probate Department of the Superior Court of San Diego County.

No. These benefits can be paid directly to a named beneficiary without involving the probate court.

This depends on your situation. If you’re a surviving partner and legally entitled to all of the property, you can file a court order and avoid a complicated probate procedure.
If there are debts, tax claims and other issues to handle, probate may be a better option for you.

Minimum probate fees depend on the size of the estate.

• 4% of the first $100,000 of the gross value of the probate 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.

A $1M estate will incur $23,000 in probate fees, in addition to court costs. Depending on the case, the estate can also be responsible for:

• CPA and tax preparation fees.
• litigation costs
• fees from the sale of assets

A living trust operates outside of the probate process.
When a living trust holds title to the decedent’s property, these assets can be passed to the beneficiaries without court proceedings.
If all property is managed through a living trust or a joint-ownership agreement, there may be no need to probate the will.
You can learn more about living trusts on our homepage.