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ARTICLE 1:
7 MOST FREQUENTLY ASKED
QUESTIONS ABOUT PROBATE
IN CALIFORNIA?
1. How long does a California probate proceeding
take?
A "short" or "summary" probate proceeding can take
as little as approximately 30 days. However, not every estate
qualifies for the "short" or "summary" probate proceeding. A "full"
formal probate proceeding can be completed in as little as approximately
6 months from the date that the probate petition is filed with
the court to the date of distribution. But the time can run longer
depending upon the creditor's claims filed against the estate,
litigation, disputes among the beneficiaries, etc. Most probates
usually take six months to a year. The so-called "delay" of probate
is usually not a significant problem. In most cases, family members
have prompt access to joint bank accounts or life insurance proceeds.
If special needs exist, the probate court may allow for preliminary
distributions or a family allowance.
2. How much are the attorney's fees?
Most attorneys charge the "statutory fee" for handling
a probate. The statutory fee is set forth in California Probate
Code sections 10800-10850. The statutory fee represents the maximum
fee for ordinary probate legal services that may be charged by
an attorney. In addition to the statutory fee, attorneys are entitled
to obtain additional fees for "extraordinary services" such as
handling the sale of real property during the course of the probate
proceeding, or assisting in the preparation of tax returns for
the estate. Our firm's practice is to charge a reasonable hourly
rate for the hours that we spend on the case which, in most cases,
is less than the statutory fee. Our fees are negotiable and in
almost all cases are deferred until the end of the probate proceeding.
If you are interested in hiring our firm to handle a probate or
trust matter in California, please call to set up a free initial
consultation.
3. What are the other costs that are involved in
a California probate proceeding?
The term "costs" does not include attorney's fees,
but includes the initial filing fee, the publication fee for the
publication of the notice of petition to administer estate and
the probate referee's fees. If the case involves litigation, there
may be other costs for such things as deposition reporters, subpenas,
expert witnesses, etc.
4. Can property be transferred without probate
in California?
In some instances, property can be transferred without
a formal probate proceeding. Whether or not a decedent's property
can be transferred without a formal probate depends on the type
of assets the decedent owned at the time of death and/or the nature
and size of the decedent's estate. Certain assets, for instance,
may not be subject to probate. Life insurance, for example, usually
passes directly to the named beneficiary without court confirmation.
Property held in joint tenancy may also pass directly to the surviving
joint tenant.
In other cases, some or all of the decedent's assets
may qualify for a "summary probate" or "set-aside proceedings."
These proceedings are less complicated alternatives to a formal
probate. For example, if all of the decedent's property goes to
the surviving spouse, a summary probate proceeding can be used
where a "spousal property petition" is filed with the court seeking
court confirmation that the surviving spouse owns the property.
This proceeding can take as little as 30 days. In other cases,
if the total value of the decedent's property otherwise subject
to probate is less than $100,000, an affidavit procedure may be
used to transfer personal property, and the transfer of real property
can be confirmed through a relatively simple proceeding.
However, even if property can be transferred without
probate, it may be beneficial to have a formal probate depending
upon the nature and the size of the estate, the creditor's claims
against the estate and the original tax basis of the assets that
the decedent owned at the time of death. With respect to any decedent's
estate, you should consult with an attorney and have an attorney
analyze the entire estate to see if a formal probate proceeding
will be beneficial to the heirs prior to taking any steps to transfer
the decedent's property without probate.
5. What happens if there is a "Living Trust"?
If the decedent left his or her assets in a trust,
both the trustee and the beneficiaries of the trust should seek
competent legal advice immediately after the death of the decedent.
Although a trust may not have to go through "probate,"
the trustee should nevertheless obtain legal advice in order to
administer the trust in compliance with the trust document and
California law. Being a trustee is a serious responsibility. Each
trust document is different, and the trustee is required to administer
the trust in accordance with its terms. If you have been named
as a trustee you should seek the advice of an attorney after the
death of the decedent to review the terms of the trust and your
responsibilities as trustee. If the trustee does not comply with
the various legal rules and terms of the trust, the trustee may
be held personally liable to the beneficiaries. If you have been
named trustee, you will also be required to perform a number of
tasks that require legal and tax advice. Among other things, these
tasks include: providing legal notice to the decedent's creditors,
giving legal notice to the beneficiaries of the trust, filing
tax returns on behalf of the trust, providing detailed accountings
of the trust assets, receipts and disbursements, making distributions
to the trust beneficiaries in accordance with the terms of the
trust, and investing trust assets in accordance with California
law and the terms of the trust.
If you are the beneficiary of a trust, it is also
advisable to seek legal advice following the death of the decedent.
An attorney can advise you as to whether or not the trustee is
managing the trust assets properly, can insure that proper and
timely accountings are provided, and that distributions are made
properly. Legal advice may be needed if there is any mismanagement
of the trust assets by the trustee, and, in some cases, the beneficiary
may need to take legal action against the trustee.
6. Who will be
appointed the administrator or executor of the estate?
If the decedent left a will and named an executor
in his or her will that person will most likely be appointed as
the executor of the decedent's estate unless the named executor
refuses to act or is unfit to serve as executor. If the decedent
died without leaving a will, the court will appoint a person to
act as the administrator of the decedent's estate. California
law provides a list of relatives designating who has priority
to act as the administrator of the decedent's estate. The court
will appoint one of these relatives in the order of their priority
to act as the administrator of the decedent's estate provided
the person is qualified and there are no objections to his or
her appointment. The parties can also request that more than one
individual act as administrators of the decedent's estate.
7. What happens if there is no Will in California?
If a person who resides in California dies without
leaving a will, his or her property will be distributed to those
individuals who constitute the decedent's heirs under California's
laws of intestate succession. The laws of intestate succession
determine how the estate will be divided based on a person's relationship
to the decedent, e.g., surviving spouse, children, other descendants,
etc. Determining how the decedent's property will be distributed
also depends on how title to the decedent's property was held
as of the date of death, whether or not the decedent's property
constituted separate property, community property, joint tenancy
property or property belonging to a domestic partnership. Probate
of an intestate estate will still be required unless specific
property of the estate is not subject to probate such as life
insurance, etc. In cases of intestacy, the court will appoint
an administrator to handle the probate proceeding - generally,
the decedent's closest relative. If you believe you have a claim
to a decedent's property, you should consult with an attorney
immediately after the decedent's death so that you can protect
your rights to the property.
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Our practice is to charge a reasonable
hourly rate for the hours that we spend on the case which,
in most cases, is less than the statutory fee.
If you are interested in hiring our
firm to handle a probate or trust matter in California.
Please call Tracy Murphy at (949)916-6020
to set up a FREE initial consultation.
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MORE FREQUENTLY
ASKED
PROBATE
QUESTIONS:
WHAT
IS PROBATE? Probate is a legal proceeding that is used
to wind up a person's legal and financial affairs after death.
In California probate proceedings are conducted in the Superior
Court for the county in which the decedent lived, and can take
at least six months and sometimes as long as several years.
WHAT
HAPPENS DURING A PROBATE? The person who is nominated
in the will as executor files a petition with the Superior Court
asking that he or she be appointed as executor. If there is
no will, the Probate Code provides a list of persons who have
priority to petition to become executor. The will also is filed
with the petition, and notices are sent to the heirs and/or
relatives to let them know when the hearing will be held. If
there are objections to the petition, or if the validity of
the will is contested, the hearing will be used to resolve any
problems that have arisen. In some cases this may mean that
the validity of the will is not upheld, or that some other person
than the original petitioner is chosen to administer the estate.
In most cases, however, there is no objection and the petition
is granted. The executor then makes an inventory of the estate's
assets, locates creditors, pays bills, files tax returns, and
manages the estate assets. When all of the duties of the executor
are completed, another petition is filed with the court asking
that the estate be distributed to the heirs. If this petition
is granted, the estate administrated is completed by distributing
the assets to the heirs and filing final tax returns.
HOW MUCH DOES PROBATE COST? California
Probate Code section 10810 sets the maximum statutory fees that
attorneys can charge for a probate. Higher fees can be ordered
by a court for more complicated cases. The fees are four percent
of the first $100,000 of the estate, three percent of the next
$100,000, two percent of the next $800,000, one percent of the
next $9,000,000, and one-half percent of the next $15,000,000.
For estates larger than $25,000,000, the court will determine
the fee for the amount that is greater than $25,000,000.
The fees
listed below are the California statutory fees used to compensate
attorneys and executors in probate cases for various sizes of
estates. If both the attorney and the executor receive a fee,
the amount paid will be double that shown below. The value
of the estate is determined, in general, by the inventory for
the estate. (If an accounting of the estate has been waived,
the total value of the estate for attorney's fees purposes is
the inventory, plus gains on sales, minus losses on sales.)
Debts are not included in determining attorney's fees, and if
a house is appraised at $1,000,000, for example, and it has
a mortgage of $800,000, it is still considered a $1,000,000
asset for the purpose of calculating attorney's fees.
Estate
Value
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Statutory
Fee
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$100,000 |
$4,000 |
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$200,000 |
$7,000 |
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$300,000 |
$9,000 |
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$400,000 |
$11,000 |
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$500,000 |
$13,000 |
|
$600,000 |
$15,000 |
|
$700,000 |
$17,000 |
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$800,000 |
$19,000 |
|
$900,000 |
$21,000 |
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$1,000,000 |
$23,000 |
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$2,000,000 |
$33,000 |
The fee
charged to file a probate petition is $320, but may be slightly
higher in some counties due to surcharges. Filing fees
were considerably higher until a state appellate court ruled
in early 2008 that the fees were unconstitutional because they
violated Proposition 6, passed in 1982 to eliminate the state
inheritance tax.
APPRAISAL
OF THE ESTATE: Estates are appraised by probate referees,
who are appointed by the State Controller to determine the fair
market value of the asset. The fair market value includes mortgages
and other debts, which can result in an appraisal of the property
that is higher than the equity that the deceased owned in the
property. Probate referees receive a fee based on .1 percent
of the assets that have been appraised.
FEES CAN GO HIGHER: In probates
that are complicated by lawsuits or tax problems, the attorney
and executor can ask the judge to approve fees that are higher
than those set by state law.
COURT
COSTS: In addition to the statutory fees, there are costs
for appraisal fees, publication costs, and miscellaneous fees
charged by the county. A typical estate might incur $1,000 to
$3,000 in court costs and other mandated fees.
ADVANTAGES
OF PROBATE: The proceedings are controlled by a judge,
who can decide disputes between heirs or between the heirs and
the executor. Creditors are required to submit their claims
against the estate within a four-month period, provided they
have been notified of the probate. The executor is required,
in most cases, to prepare an accounting and report of the executor's
activities.
DISADVANTAGES
OF PROBATE: The cost is usually much higher than would
be required for the administration of a living trust for an
estate valued at the same amount. It usually takes longer to
probate an estate than to administer a trust. Most estates don't
need the supervision of the court unless disputes occur.
Probate,
Trusts, Wills, and Estate Planning Attorney
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Servicing
Orange County, Irvine, Laguna Woods, Leisure World, Seal
Beach, Laguna Beach, Laguna Hills, Lake Forest, Mission
Viejo, Laguna Niguel, Aliso Viejo, Coto De Caza, San Clemente,
Newport Beach, Huntington Beach
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 Orange
County's friendly and caring estate planning law office.
The Law Office of Tracy Murphy is located in the city of
Irvine, in Orange County, California. Tracy Murphy represents
individuals, families, and small business owners in estate planning,
business planning, and tax planning. Tracy Murphy is a knowledgeable
estate planning attorney who understands the value of establishing
trustworthy, long-term relationships with each client. Clients
appreciate the availability of house calls and hospital visits
at no additional cost.
Tracy
Murphy, Attorney At Law sets the highest standards
in Custom Estate Planning, dedicated to today's needs and tomorrow's
realities. Thorough and thoughtful evaluation of your needs guarantees
the optimum solution for your circumstances - no matter how simple
or complex.
Your
attorney should be your advocate. I will help you
plan one of the most important aspects of your future - your legacy.
With information assembled in one-on-one meetings, we will personalize
a trust that will put a legal frame to your needs and anchor your
financial legacy.
Together
we will set objectives, address concerns
and custom-build an Estate Plan tailored to reflect
your needs, lifestyle and goals. Caring continuing attention to
the administration of your estate offers comfort to loved ones
and helps avoid unnecessary family hardship.
 "I
believe the most important estate planning objectives are protecting
what you have earned, and planning to provide for your loved ones"
- Tracy Murphy.
ABOUT ORANGE COUNTY WHERE THE MAJORITY OF OUR CLIENTS ARE:
Orange County is a county in Southern California, United States.
Its county seat is Santa Ana. According to the 2000 Census, its
population was 2,846,289, making it the second most populous county
in the state of California, and the fifth most populous in the
United States. The state of California estimates its population
as of 2007 to be 3,098,121 people, dropping its rank to third,
behind San Diego County. Thirty-four incorporated cities are located
in Orange County; the newest is Aliso Viejo.
Unlike many other large centers of population in the United States,
Orange County uses its county name as its source of identification
whereas other places in the country are identified by the large
city that is closest to them. This is because there is no defined
center to Orange County like there is in other areas which have
one distinct large city. Five Orange County cities have populations
exceeding 170,000 while no cities in the county have populations
surpassing 360,000. Seven of these cities are among the 200 largest
cities in the United States.
Orange County is also famous as a tourist destination, as the
county is home to such attractions as Disneyland and Knott's Berry
Farm, as well as sandy beaches for swimming and surfing, yacht
harbors for sailing and pleasure boating, and extensive area devoted
to parks and open space for golf, tennis, hiking, kayaking, cycling,
skateboarding, and other outdoor recreation. It is at the center
of Southern California's Tech Coast, with Irvine being the primary
business hub.
The average price of a home in Orange County is $541,000. Orange
County is the home of a vast number of major industries and service
organizations. As an integral part of the second largest market
in America, this highly diversified region has become a Mecca
for talented individuals in virtually every field imaginable.
Indeed the colorful pageant of human history continues to unfold
here; for perhaps in no other place on earth is there an environment
more conducive to innovative thinking, creativity and growth than
this exciting, sun bathed valley stretching between the mountains
and the sea in Orange County.
Orange County was Created March 11 1889, from part of Los Angeles
County, and, according to tradition, so named because of the flourishing
orange culture. Orange, however, was and is a commonplace name
in the United States, used originally in honor of the Prince of
Orange, son-in-law of King George II of England.
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Incorporated:
March 11, 1889
Legislative Districts:
* Congressional: 38th-40th, 42nd & 43
* California Senate: 31st-33rd, 35th & 37
* California Assembly: 58th, 64th, 67th, 69th, 72nd &
74
County Seat: Santa Ana
County Information:
Robert E. Thomas Hall of Administration
10 Civic Center Plaza, 3rd Floor, Santa Ana 92701
Telephone: (714)834-2345 Fax: (714)834-3098
County Government Website: http://www.oc.ca.gov |
CITIES OF ORANGE COUNTY CALIFORNIA:
City
of Aliso Viejo,
92653, 92656, 92698
City of Anaheim, 92801,
92802, 92803, 92804, 92805, 92806, 92807, 92808, 92809,
92812, 92814, 92815, 92816, 92817, 92825, 92850, 92899
City of Brea, 92821,
92822, 92823
City of Buena Park,
90620, 90621, 90622, 90623, 90624
City of Costa
Mesa, 92626, 92627, 92628
City of Cypress,
90630
City of Dana Point,
92624, 92629
City of Fountain
Valley, 92708, 92728
City of Fullerton,
92831, 92832, 92833, 92834, 92835, 92836, 92837, 92838
City of Garden
Grove, 92840, 92841, 92842, 92843, 92844, 92845, 92846
City of
Huntington Beach, 92605, 92615, 92646, 92647, 92648,
92649
City of Irvine,
92602, 92603, 92604, 92606, 92612, 92614, 92616, 92618,
92619, 92620, 92623, 92650, 92697, 92709, 92710
City of La Habra,
90631, 90632, 90633
City of La Palma,
90623
City of Laguna
Beach, 92607, 92637, 92651, 92652, 92653, 92654, 92656,
92677, 92698
City of Laguna
Hills, 92637, 92653, 92654, 92656
City of Laguna
Niguel, 92607, 92677
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City
of Laguna Woods,
92653, 92654
City of Lake Forest,
92609, 92630, 92610
City of Los
Alamitos, 90720, 90721
City of Mission
Viejo, 92675, 92690, 92691, 92692, 92694
City of Newport
Beach, 92657, 92658, 92659, 92660, 92661, 92662, 92663
City of Orange,
92856, 92857, 92859, 92861, 92862, 92863, 92864, 92865,
92866, 92867, 92868, 92869
City of Placentia,
92870, 92871
City of Rancho Santa
Margarita, 92688, 92679
City of San Clemente,
92672, 92673, 92674
City of San
Juan Capistrano, 92675, 92690, 92691, 92692, 92693,
92694
City of Santa Ana,
92701, 92702, 92703, 92704, 92705, 92706, 92707, 92708,
92711, 92712, 92725, 92728, 92735, 92799
City of Seal Beach,
90740
City of Stanton,
90680
City of Tustin, 92780,
92781, 92782
City of Villa Park,
92861, 92867
City of Westminster,
92683, 92684, 92685
City of Yorba
Linda, 92885, 92886, 92887
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Noteworthy
communities Some of the communities that exist within city
limits are listed below:
* Anaheim Hills, Anaheim * Balboa Island, Newport Beach
* Corona del Mar, Newport Beach * Crystal Cove/Pelican Hill,
Newport Beach * Capistrano Beach, Dana Point * El Modena,
Orange * French Park, Santa Ana * Floral Park, Santa Ana
* Foothill Ranch, Lake Forest * Monarch Beach, Dana Point
* Nellie Gail, Laguna Hills * Northwood, Irvine * Woodbridge,
Irvine * Newport Coast, Newport Beach * Olive, Orange *
Portola Hills, Lake Forest * San Joaquin Hills, Laguna Niguel
* San Joaquin Hills, Newport Beach * Santa Ana Heights,
Newport Beach * Tustin Ranch, Tustin * Talega, San Clemente
* West Garden Grove, Garden Grove * Yorba Hills, Yorba Linda
* Mesa Verde, Costa Mesa
Unincorporated communities These communities are outside
of the city limits in unincorporated county territory:
* Coto de Caza * El Modena * Ladera Ranch * Las Flores *
Midway City * Orange Park Acres * Rossmoor * Silverado Canyon
* Sunset Beach * Surfside * Trabuco Canyon * Tustin Foothills
Adjacent counties to Orange County Are: * Los Angeles
County, California - north, west * San Bernardino County,
California - northeast * Riverside County, California -
east * San Diego County, California - southeast
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