What is Probate in California?

Probate in California is a legal proceeding used to distribute a decedent’s assets. The California probate process is also used to pay decedent’s debts. The court overseeing the probate makes sure that the decedent’s assets are distributed according to decedent’s will or California law.

 Is probate required in California?

Probate is not always required in California. Whether or not probate is necessary depends on how a decedent owned assets. Some assets can pass by operation of law immediately at decedent’s death.  Some examples include:

  • Payable on Death (POD) Accounts:  A pay on death beneficiary on bank accounts will inherit the money in the account at death. The money will go to the named beneficiary without the need for a probate. Generally the bank just needs to see decedent’s death certificate to transfer the money.
  • Spouses and Community Property with Rights of Survivorship:  Spouses in California can own real property titled as “community property with rights of survivorship.” If community property does not have the “with rights of survivorship” titling, then only half of the decedent spouse’s community property goes to the surviving spouse, unless the will directs otherwise, and opening probate would be necessary.
  • Property By Right of Survivorship: Joint tenancy ownership includes the right of survivorship.  When two people hold title in “joint tenancy,” and one dies, the asset will be owned by the other joint tenant.  Because joint tenancy includes the right of survivorship, no probate is required.
  • By Trust: If Decedent’s assets were held in a trust, then probate can usually be avoided. Bank accounts, real property, and other assets can be held in trust. The trust will name a trustee to take over on decedent’s death. The trustee will be responsible for transferring the assets of the trust to the beneficiaries. The trust will direct how the assets are to be distributed, and to whom. The probate court does not have to be involved.

See the Assets of the Deceased chart for additional information.

How much does probate cost?

A California probate lawyer can bill hourly for their time or charge a flat fee.  Attorneys can also charge a “statutory fee” for ordinary services in a California probate. A statutory fee is a percentage of the probate assets. California law sets forth the percentages. The current rates are:

  1. Four percent on the first one hundred thousand dollars ($100,000).
  2. Three percent on the next one hundred thousand dollars ($100,000).
  3. Two percent on the next eight hundred thousand dollars ($800,000).
  4. One percent on the next nine million dollars ($9,000,000).
  5. One-half of 1 percent on the next fifteen million dollars ($15,000,000).
  6. For all amounts above twenty-five million dollars ($25,000,000),a reasonable amount to be determined by the court. Cal. Probate Code s 10810

In addition to the statutory fee, a probate lawyer is permitted to seek additional compensation for “extraordinary services.”   Fees for extraordinary services must be approved by the court.

How long does probate take in California?

The length of time a California probate takes can vary widely. A probate with many beneficiaries, litigation, or disputed assets can last for years. A straightforward probate takes six months to a year. If there is a will, generally the person named in the will to serve as personal representative of the estate will file to open probate. Probate will be opened in the county where the decedent lived.

After the personal representative is appointed, the personal representative has many duties. The personal representative has to marshal decedent’s assets, notify beneficiaries and creditors, settle all claims, and then distribute the estate according to the will and California law.

How do I avoid probate?

Many people simply want to avoid probate.  This is because probate is often seen as a cumbersome process that is a waste of time and money.  Fortunately, there are many ways to avoid probate. The main way to avoid probate is if a decedent consciously structures assets in a way that probate is not necessary. As discussed above, the easiest way is to hold assets jointly with rights of survivorship or to designate pay-on-death beneficiaries on accounts. A trust is another vehicle used to avoid probate, and can be an effective way for a decedent to direct the distribution of assets upon death.

Andrew Gold, Esq.