PROBATE AND TRUST ADMINISTRATION
What is Probate Administration?
The formal probate process is a formal court process in which a judge determines issues related to the distribution of individually owned assets at the time of that person’s death. When the deceased person has an estate plan, the executor previously selected should be able to make sure all assets are distributed according to the will, without unnecessary delays or costs.
The Estate Planning Law Firm is capable of guiding the previously selected executor through the maze of challenges that can accompany the probate process. The unfortunate reality, for those that fail to develop a proper estate plan, is the probate process can take on a life of its own, resulting is delay after delay, and significant costs that could have been avoided.
With a living trust, in many cases, the expensive and time consuming process of probate can be avoided all together. A living trust is a legal document that, similar to a will, that memorializes what you want to happen to your assets when you die.
One significant difference between a living trust and a will is that with a living trust people can often avoid unnecessary probate after death. Another significant difference is when a person has incorporated a living trust into an estate plan, you can control your assets even after death.
With a living trust, you select trusted person to be the “trustee” of your estate. Upon your death, the trustee is empowered to make certain all of the assets in your estate plan are distributed in a timely manner, according to your wishes.
How long can probate take?
The probate process can be very time consuming. Prior to the impact of Covid-19, probates were taking a minimum of 1 year 2 months to upwards of 2 years to complete. Since the Courts have been impacted by Covid-19, probates are projected to take a significantly great amount of time to complete.
What can probate cost without an estate plan?
Throughout California, probate fees are determined by a probate judge in accordance with California Probate Code Sections 10810 and 10811.
According to California Penal Code Section 10810:
Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate accounted for by the personal representative, 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 1 percent on the next fifteen million dollars ($15,000,000).
- For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.
For the purposes of this section, the value of the estate accounted for by the personal representative is the total amount of the appraisal of property in the inventory, plus gains over the appraisal value on sales, plus receipts, less losses from the appraisal value on sales, without reference to encumbrances or other obligations on estate property.
In some cases, the costs associated with probate can exceed far exceed the costs laid out in California Penal Code Section 10811. For example, as articulated in California Penal Code Section 10811, the court may also “…allow additional compensation for extraordinary services by the attorney…” providing legal representation in probate court when an estate plan was not adopted.
More specifically, according to California Penal Code Section 10811:
Subject to the provisions of this part, in addition to the compensation provided
By Section 10810, the court may allow additional compensation for extraordinary services by the attorney for the personal representative in an amount the court determines is just and reasonable.
Extraordinary services by the attorney for which the court may allow compensation include services by a paralegal performing the extraordinary services under the direction and supervision of an attorney. The petition for compensation shall set forth the hours spent and services performed by the paralegal.
An attorney for the personal representative may agree to perform extraordinary service on a contingent fee basis subject to the following conditions:
- The agreement is written and complies with all the requirements of Section 6147 of the Business and Professions Code.
- The agreement is approved by the court following a hearing noticed as provided in Section 10812.
- The court determines that the compensation provided in the agreement is just and reasonable and the agreement is to the advantage of the estate and in the best interests of the persons who are interested in the estate.
Plan for the best interests of your family and your estate!
A proper estate plan can eliminate many of the delays and excessive expenses associated with navigating the probate court. Without a proper estate plan, upon death, the government will make the decisions related to whom and how your estate will be distributed. Contact The Estate Planning Law Firm (714) 805-9229 for your probate and trust administration needs.