San Diego Probate Attorneys
Dedicated to providing our clients with quality, experienced and compassionate representation for all probate matters.
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person’s property. A probate court decides the validity of a testator’s will or how an estate will pass if the decedent died “intestate,” meaning without a will or estate plan. A probate proceeding interprets any instructions left by the deceased, decides the personal representative of the estate, adjudicates the interests of heirs and other parties who may have claims against the estate, and orders the estate distributed according to the decedent’s will or, if intestate, by California Law.
The experienced probate attorneys at Naimish & Lewis practice in the area of Probate Administration, Probate Litigation, Mediation, Conservatorship and Guardianship.
Naimish & Lewis, APC: Your Trusted Estate Planning and Probate Advocates
Partner Mary J. Naimish, CFLS, and Sam Tari
Experts in the California Probate Process
Making The Best Decisions Possible For Your Family.
Our San Diego probate lawyers can assist you in preparing and filing all documents required by the probate process. Our attorneys will work with you to ensure completion of all required notices and court requirements, assist in coordination of any necessary appraisals, work with the administrator to liquidate assets, arrange for the creditors to be paid, file creditor objections, and work closely with the personal representative to carry out any details unique to the administration and distribution of a probate estate.
During probate, your questions will be answered promptly and thoroughly. Please call us at (619) 523-9900 to schedule a consultation or please email us using the contact form.
Understanding Probate Court
Generally, the probate process is a court process that includes proving a will is valid if one exists, appointing a legal representative with authority to act on behalf of the decedent, identifying and creating an inventory of the decedent’s property including obtaining appraisals when necessary, paying the decedents debts and taxes, and finally distributing the remaining assets according to the terms of the decedents Will, or to the decedents heirs under California Law if there is no will. Every situation is unique and some estates can be handled with a combination of probate and non-probate procedures. There are many different assets with many different methods and means to transferring those assets to the proper beneficiaries, including shortened probate procedures, and small estate administration. Some estates that do not require probate proceeding may utilize a formal probate procedure to ensure legality, especially in legally contentious situations.
Probate is a judicial court process.
This means that the court system and a judge will supervise the process of transferring legal title from the deceased persons estate to his or her beneficiaries. Without an estate plan in place, California Probate Code dictates the beneficiaries of an estate. Even though you have a valid Will, your estate will need to go through the probate process if the value exceeds a certain number. As of 2020 that number is $166,250, or real property valued at more than $55,425.
Though we create estate plans to avoid probate and its expenses, the probate process is a necessity to ensure that once a person has passed, their debts are paid, and their assets are distributed according to their wishes, or by California law. Even with an estate plan, the probate court stands ready to assist in cases where the beneficiaries cannot agree, or the plan is vague or ambiguous.
What occurs during probate?
The first step in every probate is to determine the personal representative of the estate to handle the probate process, an executor of the estate, if nominated in a valid will, or an administrator of the estate if appointed by court. The personal representative, once established, is tasked with marshalling (identifying, locating, and collecting) the estate assets. As the marshalling process commences, the personal representative must also provide notice to creditors, beneficiaries, and heirs, by sending notice to each person/entity, as well as give notice to the general public by publishing such notice in a local newspaper. This gives the general public notice of the probate process and allows time for any creditors to come forward and make a claim on the estate. Once all of the above has been completed, and allotted time has passed, the personal representative prepares an inventory of all the estate assets. Once the court has approved the inventory list, and all the outstanding debts and taxes have been paid, the personal representative transfers the remaining assets to any beneficiaries named in the will or to the heirs of the deceased according to California intestacy law.
How long is the probate process?
Probate in California generally takes at least a year to finish the process and obtain a court order to distribute the assets. Although a nine-month probate is feasible, it would be extremely quick. The time is needed to file the petition and start the process, publish notice and send notice to all required parties, prove the will, marshal the assets, determine and pay all creditors, pay all taxes, determine distributions, and finally close the estate. The speed of the process is also determined by the local court system and the resources available to process all the cases. It is common for a standard probate process to require the full year and, if problems arise, it is not uncommon for a probate to take years.
How much does probate cost?
In California, probate fees are determined by law based on the total value of the assets in the estate, not by the attorney’s hourly rate. The fee schedule is similar to income tax, in that the fee percentages decrease incrementally as the value of the estate increases.
As listed in California Probate Code 10810, the fees outlined in 2020 are:
| (1) 4% for the first 100k | = 4k |
| (2) 3% for the next 100k | = 3k |
| (3) 2% of the next 800k | = 2k per 100k |
| (4) 1% of the next 9 mil | = 1k per 100k |
| (5) .5% of the next 15mil | = $500 per 100k |
For all amounts above 25 mil, a reasonable amount determined by the court
To help bring those calculations in perspective, a few examples:
| (1) A 200k estate | = 7k |
| (2) A 500k (1/2 million) estate | = 13k |
| (3) A 1 million dollar estate | = 23k |
| (4) A 10 million dollar estate | = 113kk |
First, note that the value of the estate used in the fee calculation is the gross value of the estate, not the equity in the estate. A home valued at 500k is used to determine the value, not 100k equity in the home that would be received after sale and paying off a 400k mortgage. It does not matter how much debt the home may have, the 500k market value is the determining value. Now for the next unfortunate surprise, once you have determined the value of the fees based on the above calculation, double them. Once a probate is completed, that fee amount is assigned to pay both the personal representative and the attorney. In some cases, the personal representative may waive that fee, typically if they are also inheriting from the estate. Keep in mind that these are only the fees for the representative and attorney. There are also costs associated with a probate (such as filing fees, court fees, mailing costs, etc.) and if the probate involves overly complex issues or litigation, the court may award additional fees.
Of course, there are ways to avoid probate. A thorough estate plan can avoid probate and ensure that your estate passes on to your loved ones in a much quicker process without losing a larger portion of the estate to the courts and attorneys. Whether you want to ensure that your family doesn’t have to go through the probate process, or whether probate is inevitable, the attorneys at Naimish & Lewis are dedicating to working closely with our clients to help resolve their probate legal matters in an efficient and professional manner.
Every Probate is Unique
Contact Naimish & Lewis, APC today.
At Naimish & Lewis we have the highest reputation for providing you and your family with the respect you deserve. We will help you navigate the stress and complications of probate law while keeping the focus on what is best for you and your family. We do this with years of experience and compassion for your family. We will be your advocate.
You may be in need of a little advice right now. We’d like to meet you. If you are struggling with a serious family law issue or you’re planning for the future, Naimish & Lewis can help. Connect with us now for guidance from one of our experienced attorneys. Contact Naimish & Lewis, APC today.
Conservatorship and Guardianship
Conservatorship
Conservatorship is a legal process in the probate courts in California which grants an individual appointed by the Court to manage the daily life and/or financial affairs of a person who is unable to due to physical or mental limitations, or old age. A person under conservatorship is a “conservatee” and the individual in charge of helping them manage their affairs is the “conservator”. A conservator can be only of the “estate” (financial affairs) or of the “person” which allows the conservator to make decisions regarding daily life, such as living arrangements and health care decisions of the conservatee.
Guardianship
Guardianship is a legal process in the probate courts in California which grants an individual appointed by the Court to manage the daily life and/or financial affairs of a child. The guardian has a lot of the same rights and responsibilities as parents. A guardianship can be only of the “estate” (financial affairs) or of the “person” which allows the conservator to make decisions regarding daily life such as living arrangements, health care decisions, and where the child goes to school. A guardianship is more limited than adoption and will typically end once the minor turns 18 and becomes an adult.
