Does Having a Will Avoid Probate?

No, unfortunately. This is another common misperception. Unless your estate qualifies for one of the procedures outlined below, if you have a Will, your assets must be probated. One reason for this is that part of the probate process is to make sure the Will is a valid Will. Using a Will as the central document of an estate plan virtually assures the person’s estate will need probate after death. Still, with proper planning, there are ways to avoid probate

Steps to Avoid Probate

You can take many legal steps now to avoid probate in California by transferring ownership of your assets. Each of these strategies has its advantages and disadvantages. Contact us to schedule a free consultation with one of our estate planning attorneys to learn more about all of these strategies. Here are a few to consider:

• Joint Tenancy Custodial Accounts
• Payable on Death / Transfer on Death / In Trust For Accounts
• Beneficiary Designation
• Revocable Living Trusts
• Various types of Irrevocable Trusts

Who Is The Beneficiary of The Estate?

If the decedent died with a valid Will, then the beneficiaries would be the persons designated in the Will. If the decedent died without a Will, the court determines who the beneficiaries are based on California law. The law of intestacy is complicated, and sometimes the beneficiaries are not who you think they might be. NOTE: Sometimes beneficiaries want to refuse their inheritance in favor of another person. This is known as a Disclaimer. A person disclaiming his or her inheritance CANNOT direct who will receive the inheritance. Legal counsel should be consulted before executing any disclaimers or assignments of interests in the estate.

Probate Administration vs. Probate Litigation

Probate litigation occurs whenever disagreements, disputes, or challenges regarding any aspect of the probate process occurs. Whenever a family settles the affairs of a deceased loved one, there are numerous possibilities that can create estate disputes. Heirs may argue over the disposition of the deceased person’s estate assets. A family member may find themselves at odds with the estate’s executor or administrator.

If your inheritance is at risk, you need the help of an experienced estate and trust litigation attorney. Our Southern California probate litigation team’s training and experience in estate planning, wills, trusts, and civil litigation law, coupled with their courtroom skills and experience are used to meet our clients’ probate and trust litigation needs.

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How Long Does a The Probate Process Take in California?

The probate process can be extremely costly and time consuming, often taking a year or more to complete. Because of time delays between the time of filing documents with the court and the hearing related to the subject matter of those documents, a probate administration handled by Sandoval Legacy Group will take a minimum of eight months to one year to go from initial filing to approval of the Final Report and distribution of assets to beneficiaries. A typical probate handled by other attorneys or persons representing himself or herself (pro per) takes longer, usually between eighteen months and two years.

In addition to being composed of a large number of statutes, California probate law is also influenced by prior court cases at the national and state levels. Our goal as an experienced probate attorney is to minimize litigation whenever possible. Because there are many codes and cases, as well as new and updated laws, it is best to hire a lawyer who exclusively practices probate laws in California rather than a general practitioner.

Fun Fact: The longest probate in U.S. history, the probate of Marilyn Monroe’s estate, took over eighteen years to go from start to finish.

How Much Does Probate Cost In California?

Probate costs can vary, depending on whether you administer the estate all by yourself, with some paralegal assistance, or choose to work with a probate lawyer who will do everything for you. Probate attorney fees are set by statute in California and vary according to the value of the estate. California statutory attorney and executor fees are calculated based on the gross value, not the net estate.

If the probate is more complicated, there is a possibility the attorney and executor / administrator could get paid “extraordinary fees” on top of the statutory fees for services rendered beyond what is normally required in a probate administration (such as the sale of a business or real property or the preparation of an estate tax return). In addition to these fees, there are filing fees, publication fees, probate referee (court appointed appraiser) fees, and certification costs. The statutory fees are based on the value of the gross estate. An example of the typical fees and costs for an estate consisting of a residence valued at $300,000 and $200,000 of various bank accounts and investments (for a total value of $500,000) follows:

California statutory attorney and executor fees are calculated based on the gross value, not the net estate. Therefore, the statutory attorney fees to probate a $500,000 estate with no debt are the same as the statutory probate fees to probate a $500,000 estate with $400,000 of debt, even though there is only $100,000 of net estate available for potential distribution in the latter example

The statutory attorney and executor fees are calculated as follows:

• 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
• .5% of the next $15 million
• A reasonable amount (determined by the court) for any amounts higher than $25 million

Consult with your attorney about whether extraordinary fees are anticipated in your case.

Methods to Avoid Probate

There are many planning vehicles that can be used to avoid a probate administration. There are advantages and disadvantages to each of these strategies. You can learn more about all of these strategies by attending one of our free estate planning seminars or by scheduling a free consultation with one of our law firm’s estate planning attorneys. Several popular alternatives include:

• Joint Tenancy Custodial Accounts
• Payable on Death / Transfer on Death / In Trust For Accounts
• Beneficiary Designation
• Revocable Living Trusts
• Various types of Irrevocable Trusts

Why Should I Hire an Attorney?

If you were to listen to the hearings before a probate judge most days, one of the most common things you would hear the judge say is a recommendation that the executor/administrator who is representing himself or herself consider hiring an attorney. Experienced probate attorneys can often save the estate money and time. This is because most people who try to handle a probate on their own will suffer numerous continued hearings while they try to address the deficiencies pointed out by the probate court. If the case is continued too many times, the judge may issue a monetary sanction or suspend or remove the executor/administrator.

An experienced probate attorney can head off these delays and sanctions by either having the correct paperwork submitted at the start or by quickly addressing any deficiencies and can often negotiate a reduction in the claims filed by creditors, possibly saving the estate thousands or even tens of thousands in payments. A probate attorney, working with an experienced Realtor, can also minimize delays in closing the sale and may be able to help with maximizing the sales price and minimizing the sales costs. A knowledgeable probate attorney with a tax background can often suggest ways to save on income taxes and property tax issues. All this makes for the beneficiaries receiving their inheritance as quickly as possible and often in a greater amount than if the executor or administrator handled the probate by himself or herself.

Taking care of your family for the present and the future requires proper estate planning

When it comes to the planning process, including probate avoidance strategies in your overall estate plan is one of the greatest gifts you can give to your family. Along with keeping the details of your estate private and increasing the net value of the estate you pass down to your loved ones, creating an estate plan that avoids probate also spares them the additional stress and grief that typically accompanies a long, drawn-out probate process.

How Sandoval Legacy Group Can Help You

Sandoval Legacy Group is one of the most experienced probate and estate planning law firms in California. Its managing partner, Dennis M. Sandoval, is the only attorney in California with specialist certifications in the three areas of: Estate Planning, Trust and Probate Law; Taxation Law and Elder Law.

We understand that the estate planning process plays a vital role in your life and how important it is to you and your loved ones. We are committed to keeping you informed. Throughout every step of the representation, we ensure proactive communication with our clients. When someone you love passes away, you most likely already have more than enough to deal with, including planning services, contacting family and friends, and grieving your loss. At this point, the last thing you need to worry about is managing a confusing and stressful legal process. Regardless of how difficult it may be, you should contact a probate attorney right away.

Contact us today at (888) 502-2881 or contact us online to learn more about how your estate can avoid probate. Sandoval Legacy Group now has offices located across Southern California, including Riverside, Orange, San Diego, Los Angeles, and San Bernardino County, with hours designed to accommodate busy work schedules and life events.

Download Our Free Comprehensive Probate 101 eBook:

What is covered:

• The basic facts of the Probate Process and how to use it
• The steps and costs to administer a Probate Case
• Using an attorney
• The role of the person in charge of the Probate … and if they need insurance to protect themselves
• The bills, taxes, and debts of a deceased person
• Assets and how to divide them
• Heirs, Inheritance, and Property Taxes
• If the deceased person’s affairs remain private or go public
• If court proceedings are necessary
• Probate Process Timeline/Flow Chart

To speak with one of our highly skilled probate attorneys in Riverside County, Orange County, San Diego County, San Bernardino, or Los Angeles county, contact us today or call Sandoval Legacy Group at (888) 502-2881