Navigating the Probate Process in California with Expert Guidance

Introduction to Probate

When someone passes away without a Living Trust, their estate typically goes through a process known as Probate. This court-supervised procedure involves managing and distributing the deceased’s assets. While Probate may seem overwhelming, it is a systematic process that Guideway can help navigate, making it straightforward and less daunting.

The Probate Process

In California, you’ll navigate a detailed and structured process if you’re looking to self-represent as an administrator in a probate case. Probate is a step-by-step journey we guide you through from start to finish. Here’s how we assist you in each phase when you handle probate in California without an attorney:

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    Appointment of Administrator or Executor (Personal Representative):
    We help you identify the right person for the role and easily navigate the appointment process.

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    Collection and Inventory of Assets: With our expertise, we assist in identifying,  securing, and inventorying all assets, ensuring nothing is overlooked.

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    Payments of Debts and Taxes: Guideway guides you in notifying creditors, settling valid claims, and comprehensively addressing the decedent’s tax obligations.

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    Distribution of the Estate: We clarify and facilitate the distribution process, ensuring assets are allocated as intended, whether through a will or according to state laws.

Pricing and Cost Savings

Guideway offers significant cost savings over traditional attorney fees, making Probate affordable for everyone:

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    Self-Represented Clients
    Our flat fee structure ensures predictability, costing significantly less than typical attorney fees. We’re reducing our fee to $4,500 for a limited time to make our services even more accessible.
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    Attorney’s Fees
    Traditional attorney fees can escalate based on the estate’s value. In contrast, Guideway’s flat fee offers substantial savings, with detailed comparisons to illustrate potential savings.
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    Court Costs
    We provide a clear breakdown of additional costs, such as filing fees and third-party charges, ensuring transparency.
  • Some situations are not appropriate for self-representation and require legal advice.  If you need legal advice, you should speak with a qualified attorney.

Our Predicable Fees

We charge a simple flat fee of $4,500 for probate. The size of the estate does not affect the flat fee, so it is very predictable. When you have an attorney, traditional attorney fees are based on the estate size. Use the formula below to compare traditional attorney fees against our flat fee of $4,500.

4% of the estate’s value for the first $100,000.
3% of the estate’s value for the subsequent $100,000.
2% of the estate’s value for the next $800,000.

Why Choose Guideway?

Choosing the right partner to guide you through the probate process is crucial. We are not just a service provider; we are your partner in navigating the complexities of Probate with ease, efficiency, and empathy. Here’s why Guideway is the optimal choice:

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    Unmatched Local Expertise:
    At Guideway, we pride ourselves on our deep understanding of local court procedures. This isn’t just about knowing the law; it’s about understanding the nuances of how things work in your local courts, from filing processes to judge preferences. This insider knowledge can streamline the probate process, making it smoother and quicker.
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    Cost-Effective Solutions:
    We believe that one’s financial situation shouldn’t limit access to probate services. Our flat fee pricing model is designed with affordability in mind, providing a clear, upfront cost without the hidden fees or escalating charges often associated with traditional probate attorneys. This approach offers significant savings and peace of mind during a challenging time.
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    Comprehensive Support Every Step of the Way:
    Guideway offers a complete suite of services covering every aspect of the probate process. From the initial filing of the petition to the final distribution of assets, we are here to provide expert guidance to the administrator. Our support extends beyond just paperwork; we assist with asset inventory, creditor notifications, tax obligations, and more, ensuring nothing is left to chance.
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    Personalized Assistance Tailored to Your Needs:
    Every estate is unique, and so are each client’s needs. We take the time to understand your specific situation, offering personalized solutions tailored to your requirements. Our team is ready to assist if you need comprehensive support or guidance on particular aspects of the probate process.
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    Strategic Relationships with Legal Professionals:
    Guideway has established referral relationships with experienced outside attorneys for situations requiring specialized legal advice or representation. This network allows us to offer a seamless experience, ensuring you can access legal advice when necessary without incurring the high costs typically associated with attorney-led Probate.

How Long Does the Process Take?

Our services cater to those looking to preserve family assets, such as the family home, which often represents more than just property; it’s a legacy. Guideway recognizes the importance of these assets, offering a path to Probate that protects your interests and those of your loved ones.

We will prepare and file all the paperwork and assist you with the procedural aspects from A to Z. Usually, you have to be willing to appear at one or two hearings, but our objective is to make sure the paperwork is done so well that the court has no questions for you and your matter is “pre-granted” without an appearance being required.

FAQs

Q: What is Probate?

A: Historically, “probate” referred to the process of proving one’s will. Today, “probate” refers to the entire court-supervised process of administering a decedent’s estate, regardless if someone dies with a will (testate) or without a will (intestate). The deceased person is referred to as the Decedent.

The administration process includes the following:

  • Appointment as Executor or Administrator. An Executor is a person nominated by and carrying out the terms of the Decedent’s Will. An Administrator is a person the court appoints to administer the estate when the Decedent died without a Will. Usually the Administrator is a family member who comes forward to administer the estate. If no one comes forward, the court may appoint a professional to be the Administrator. A catch-all term for either an Executor or Administrator is the Personal Representative of the Estate.
  • Collection of Assets: Identifying and inventorying the decedent’s assets which will be appraised by a court appointed probate referee.
  • Payment of Debts and Taxes: Notice to all potential creditors must be given and all valid claims are to be paid prior to assets being distributed and the probate estate being closed. The Decedent’s taxes must be paid.
  • Distribution of the Estate: The estate will be distributed pursuant to the terms of the will, and if there is no will, then according to laws of intestate succession, as set forth in California Probate Code sections 6400-6414.

Q: Who will get the decedent's property?

A: This depends on whether the Decedent died with a Will or not. If the Decedent died with a valid Will, then it happens how you would expect it to happen: the Will’s beneficiaries receive the Decedent’s assets.

If the Decedent died without a valid Will, then the Decedent’s heirs receive the Decedent’s assets. The heirs are the people who are in the default estate plan provided by the California Probate Code. This is called “Intestate Succession” because it is the plan provided for a person who died “intestate” or without a Will. Community property is distributed to the Decedent’s surviving spouse. Separate property is distributed in a predicable order of succession amongst family members: A married Decedent’s separate property goes partly to his or he spouse and partly to his or her children. An unmarried Decedent’s separate property goes to his or her children. If there are no children, then parents are first, followed by siblings, and so on.

Q: What property does not have to be probated?

A: Generally, the following types of property do not need be probated:

  • Joint tenancy property, which are assets such as house or accounts co-owned with other people where the title document says “Joint Tenants” or “JT TEN”. This kind of property has the right of survivorship and the asset goes to the other co-owners, regardless of what the Decedent’s Will says.
  • Life insurance with a named beneficiary other than the decedent’s estate. Life insurance will always go to the named beneficiary, regardless of what the Will says.
  • Property in living trusts
  • Money in a bank account which has a named beneficiary who is to be paid on death.
  • Individual Retirement Accounts (IRAs) that have named beneficiaries, and
  • Community property or separate property that passes outright to a surviving spouse or registered domestic partner (this sometimes requires an abbreviated court procedure)

Q: What property must be probated?

A: Everything else! The probate estate consists of all property, except the
property that falls into the above categories, that has a combined total of
$184,500 or more.

Q: Can I represent myself in a probate proceeding?

A: Many people can very successfully represent themselves, as our hundreds of past probate clients can attest.

At Guideway, we are not attorneys, so we do not represent you in the probate matter. Rather, our clients usually represent themselves “in pro per”. The main advantage to this is massive cost savings over hiring a traditional lawyer – usually to the tune of thousands, or even sometimes tens of thousands of dollars.

We will prepare and file all the paperwork and assist you with the procedural aspects from A to Z. Usually you have to be willing to appear at one or two hearings, but our objective of course will be to see that the paperwork is done so well that the court has no questions for you and your matter is “pre-granted” without an appearance being required.

There are situations when you must not represent yourself though, such as when there are serious family disputes. Is the Will in dispute? You need a lawyer. Is there no Will and multiple family members cannot agree who will be Administrator? You need a lawyer. Does the estate have complicated assets like as a business, or a huge amount of debt? You need a lawyer. This is not an exhaustive list of reasons, and you should always consult a lawyer for legal advice when contemplating any legal action, especially one as complicated as probate.

Q: What does Probate cost?

A: Most of our clients represent themselves with our assistance. While it will take a long time because of the nature of probate, many clients are often surprised that the process ended up being much easier than they expected it to be!

We charge a simple flat fee of $4,500 for probate. The size of the estate does not have a bearing on the flat, so it is very predictable.

Costs charged by the court and other outside are entities are in addition to our fee. When you have an attorney, traditional attorney fees are based on the size of the estate. Use the formula below to compare traditional attorneys fees against our flat fee of $4,500.

4% of the estate’s value for the first $100,000.
3% of the estate’s value for the subsequent $100,000.
2% of the estate’s value for the next $800,000.

An estate worth $500,000 would have to pay attorney fees of at least $13,000.
An estate worth $1,000,000 would have to pay attorney fees of at least $23,000.
An estate worth $1,500,000 would have to pay attorney fees of at least $28,000.

You can see how it pays to be willing to possibly have to attend a hearing or two. What if you want to keep the Decedent’s house? Attorney fees are so potentially high that you may not be able to pay them without selling the house. Our fee is so much lower that keeping the house, if desired, is much more realistic.

Either way, the court will charge filing fees, and other entities will have fees as well, such as the cost of the newspaper ad, the Probate Referee’s fee, bond company premiums, and other such costs. We’ll give you an estimate of these costs when you call us.

Q: What are the steps of Probate?

A: Petition for Probate

  • The probate matter begins by filing a Petition for Probate. If there is a Will, the proposed Executor “lodges” the Will with the court.
  • The court sets a hearing date. Before the hearing, the following procedures must be followed:
  • Notice of the hearing and a copy of the Petition are mailed to everyone entitled to notice. This includes the Decedent’s heirs and anyone mentioned in the Will. The hearing date must be published in a local legal newspaper that circulates in Decedent’s community. This is to inform the  Decedent’s creditors of the proceedings. Shortly before the hearing, a court employee called the Probate Examiner will review the petition and everything else that has been submitted to see that
    everything is in order. If it is, then usually the matter will be “pre-granted” and the proposed Personal Representative will be appointed without a hearing. But if the court has questions, then an appearance will be needed to answer those questions, or the court will “continue” or reschedule the hearing.
  • When the Personal Representative is appointed, the court will issue two documents, both of which are needed for the appointment to be effective: The Judge will sign the Order for Probate, which appoints the Personal Representative, but might have conditions on it. Then the Clerk of the Court issues “Letters” after reviewing the Order for Probate to make sure all the conditions have been met.

Q: What are the conditions the court might impose on the Personal Representative?

A: The most common condition the court imposes sometimes is a “bond” which is like an insurance policy to protect the estate from the Personal Representative’s potential mismanagement. In other words, if the Personal Representative steals or wastes the Estate’s assets, then the bond protects or “indemnifies” the estate’s beneficiaries and creditors and makes them whole again.

Q: Do I have to post a bond?

A: Most Estates are administered by family members who are not likely to run off with the Estate’s assets, so the bond is a potentially expensive burden on the estate. Also, sometimes it is difficult for a self-represented Personal Representative to convince an insurance company to issue him or her a large bond. The bond can be avoided in the following circumstances:

  • If there is a Will, then the Will usually waives the requirement of a bond. But the court still may impose the bond if the court finds good cause to do so.
  • When there is no Will, all the people who are entitled to receive the estate’s assets at the end of probate can waive the requirement. They all must sign a written waiver form in order to do this; if one beneficiary refuses to waive the bond, then the bond will have to be posted. If a bond cannot be avoided, the Personal Representative can opt for “Limited Authority” which will at least exclude the equity value of the Estate’s real property, which will reduce the amount of the bond. This will come back to haunt to the Personal Representative later though, as selling the Estate’s real estate will be much more difficult later in the process.

Q: How is the estate administered?

A: When the Personal Representative is appointed and his or her appointment is effective, the Personal Representative then must “marshall” the Decedent’s assets, which just means the Personal Representative has to find out what all the Decedent’s assets consist of, secure those assets, and manage them during the probate. The Personal Representative uses the court papers (the “Letters”) to take control of accounts and other assets. The Personal Representative also has the authority to sell the Decedent’s house at this point. Before the house is sold, the Personal Representative has a duty to protect the house, which might be vacant at this point, so the Personal Representative should make sure the locks are secure and should consider installing a security system.

Q: How does the Personal Representative sell the decedent's house?

A: First, consider whether the court gave the Personal Representative “Full Authority” or “Limited Authority” under the Independent Administration of Estates Act. The type of authority will be set forth in the Order for Probate and the Letters the court issued earlier.

With Limited Authority, the court must be consulted on any sale of real property. To do this, the Personal Representative must file a petition to confirm the sale and conform with other procedural requirements, which will take additional time and impose additional expense on the estate. Many buyers (especially all-cash buyers) will not want to wait for the court confirmation process because of the delay, and also because other potential buyers who may appear at the hearing and outbid them for the property.
Full Authority is more common. With Full Authority, the Personal Representative can put the house up for sale without asking the court to confirm the sale. This is preferable and very similar to any other sale of real property.

The Personal Representee must provide notice to everyone though of at least 15 calendar days. This gives everyone entitled to notice the opportunity to examine the details of the sale and to object to the sale if the terms look undesirable to the estate. If someone objects, then the Personal Representative must submit the proposed sale for court approval, which will cause a delay of potentially several months. It should be noted that a few counties do not like to give self-represented Personal Representatives Full Authority. Alameda County is well known for this. One particular reason for hiring both Guideway and a lawyer is to avoid having to settle for only having Limited Authority in counties that do not like to give Full Authority to self-represented individuals. Call us for more information about this issue.

Q: What does the inventory and appraisal process involve during Probate?

A: When the Personal Representative is appointed, he or she must then “inventory” the estate by listing all of its assets held by the Decedent on the date of death. All the non-cash assets must then be “appraised” by a public official called the Probate Referee. The Probate Referee is automatically appointed by the court when the Judge signs the Order for Probate.

Q: How does the Personal Representative notify creditors and handle debts and taxes of the estate?

A: Notice of the administration of the estate must be given to the Franchise Tax Board, other governmental agencies, and all potential creditors. Those potential creditors then have four months to submit a claim for payment.

The Personal Representative must file all required tax returns for the Decedent and the Estate. It is best to work with an accountant who specializes in probate and trust tax returns for this process.

Notice also must be provided to any County Assessor where the Decedent owned real property. The County Assessor will usually reassess the property tax  assessment and bring it up to market value as of the date of death (unless the transfer is exempt from reappraisal for some reason, such as when a spouse
inherits the Decedent’s property). This is an important issue to keep track of because there may be additional property taxes due resulting from the reassessment from the date of death to the date the house is sold.

Q: What is involved in the final distribution of the estate?

A: Once all debts and taxes have been paid and the time for filing a creditor’s claim has expired, the personal representative can petition the court to distribute the estate. Really this means another petition is filed asking the court to approve all his or her acts, and to allow compensation for the attorney (if there is an attorney) and for the personal representative (if he or she is requesting compensation), and to allow the estate’s assets to be distributed to the beneficiaries.

An “accounting” of all the Personal Representative’s acts may be required. This is like the bond wherein all the beneficiaries can sign written waivers waiving the accounting; but also like the bond, if one person does not want to waive the accounting then the accounting must be done. All Personal Representatives
must operate as if they will have to account for every single action, so working with a good probate accountant and keeping excellent records early on in the process is imperative.

Another hearing will be held, and when approved, the Personal Representative can distribute the estate.

Q: What steps must be taken to discharge the Personal Representative formally after the final distribution?

A: After that final hearing, the process is not quite over yet. The distributees should sign Receipts of Distribution agreeing they got everything they were entitled to receive and return them to the Personal Representative. If the house was kept in the probate, the Personal Representative must record the final Order for Final Distribution in the County Recorder’s Office where the property is located, which puts the property in the beneficiaries’ names. Then the Personal Representative can be discharged from his or her duties and is absolved of further liability to the estate.

Q: What are summary probate procedures?

A: Sometimes an estate requires court intervention to be transferred to its heirs or beneficiaries, but without the requirement of a “full” probate proceeding. The following simplified procedures may be used in lieu of a full probate proceeding if the estate in question meets the requirements. Examine the following information to see if one of these possibilities fits your situation.

Affidavit for Collection of Personal Property
Personal Property, or anything other than land or buildings attached to land, can be transferred to the Decedent’s heirs without a formal probate as long as the total value of the Decedent’s estate is valued below the threshold for a full probate proceeding, which is currently $184,500.

Personal property usually refers to money and investments. It also refers to the Decedent’s tangible property such as jewelry, artwork, furniture, and other goods. This procedure just cannot be used to transfer the Decedent’s home or other real property, and the Estate has to be “small” or under the threshold. All the heirs or beneficiaries must sign an Affidavit, usually known either as an Affidavit for Collection of Personal Property or a Small Estate Declaration, to the institution where the assets are located. This is usually a bank or other such institution. The Affidavit is not filed with any court or government office; the institution just turns the assets over to the people who signed the Affidavit.

Spousal Property Petition
A surviving spouse may sometimes use a Spousal Property Petition to transfer or confirm property without a full probate proceeding. It is much simpler than full probate administration and is usually completed with only one or two court hearings.

Petition to Determine Succession to Real Property
In order to use this procedure, the estate must consist of real property having a gross value that is less than the threshold for a full probate. In order to ensure that the property qualifies for this simplified procedure, an Inventory and Appraisal form is sent to an appointed California Probate Referee so that he or she can value the estate as of the date of death. If the estate qualifies, then it is much easier than formal probate, requiring only one hearing. If the Probate Referee’s valuation of the estate is greater than the threshold for probate, then you will not be able to use this procedure.

Affidavit Regarding Real Property of Small Value
In order to use this Affidavit, the estate must consist of real property having a gross value of $61,500. If it qualifies, this procedure is even easier than the Petition to Determine Succession, because this procedure does not even require a hearing.

Guideway Tip

Avoid Probate. Create a Living Trust.

Probate rarely benefits beneficiaries; it can be expensive and time-consuming, a difficult burden at a time when families are already dealing with loss and grief. We encourage everyone to create a Living Trust, identifying precisely how your assets will be distributed among your loved ones. A Living Trust is an important part of life planning and is one of the most thoughtful things you can do for your family.

If your Probate is uncontested, we can save you thousands over the cost of an attorney. We can help.

Contact us today. We help our clients through every step of the process.