A creditor of the estate is any person or company to whom the decedent owed money. The personal representative has a legal obligation to mail notice of the probate administration to all known and reasonably known creditors. The probate process in California gives creditors at least four months from the date Letters Testamentary or Letters of Administration are filed, or 60 days from the date notice is mailed, whichever occurs last, to file a claim against the estate. The personal representative must then accept the claim if it is valid or reject if it is invalid. This mandatory creditor period is one reason probate administration in California lasts so long.
What Rights Do The Surviving Family Have In The Probate Process?
The California probate code includes several family protection statutes which provide certain family members with immediate rights to the decedent’s estate. The protected family members are the decedent’s surviving spouse or registered domestic partner and the decedent’s minor children.
The rights available to these family members include: (1) the right to temporarily live in the family home and use the family possessions such as clothing and furniture; (2) the right to set aside exempt property, other than the family home, to protect it from a money judgment if the family member is receiving insufficient assets and demonstrates a need for the property; (3) the right to set-aside the probate homestead (property to be used as the family home) to protect it from creditors and other possible heirs or beneficiaries; and (4) the right to a family allowance during the course of the administration.
How Are Probate Fees Determined In California?
Probate fees are predetermined by the probate code which calculates the fees based on a percentage of the estate’s gross value. Since it is based on gross value, the value is not reduced by debts such as a home mortgage. The personal representative and attorney representing the personal representative are entitled to statutory fees as follows:
4% on the first $100,000 or fraction thereof
3% on the next $100,000 or fraction thereof
2% on the next $800,000 or fraction thereof
1% on the next $9,000,000 or fraction thereof
½ of 1% on the next $15,000,000; and,
A reasonable fee on the excess over $25,000,000.
Thus, for example, the fee for an estate appraised at $500,000.00, would be calculated as follows:
| 4% on $100,000.00 | $4,000.00 |
| 3% on $100,000.00 | $3,000.00 |
| 2% on $300,000.00 | $6,000.00 |
| Total Fee: | $13,000.00 |
Additionally, if the personal representative and/or attorney provide extraordinary services above and beyond the standard administration requirements then these fees are paid based on an hourly rate approved by the court as just and reasonable. Extraordinary services may include legal services provided in connection with the sale of estate property, services to secure a loan to pay estate debts, and litigation connected to the estate.
What Are Some Of The Factors That Will Determine Whether Or Not I Will Need To Go To Probate Court In California To Obtain Property Belonging To The Deceased?
The key factors to determine whether formal probate is required in California are how assets were titled, the value of the decedent’s assets and whether or not the decedent was your spouse. If an asset is considered a non-probate asset, then no probate is required to transfer the asset. A non-probate asset is any asset which transfers upon death via a trust, a beneficiary designation form, a “Pay on Death” (“POD”) or Transfer on Death (“TOD”) account or by a right of survivorship, such as a joint tenancy with right of survivorship or community property with right of survivorship. If decedent owned assets which are considered probate assets, and the date of death value of all probate assets exceeds the small estate affidavit threshold of $166,250 then a formal probate administration is required. Last, if the decedent was your spouse, then you may be able to transfer the property to yourself without formal probate administration
What Is A Petition For Probate Of Will And Letters Testamentary in California?
A Petition for Probate is a request to the court to initiate a probate administration. When a decedent dies with a will, also known as dying testate, then the petition seeks to validate the will and for the petitioner to be appointed as personal representative, also known as executor. If the court grants the petition, then a document known as Letters Testamentary are filed. If a decedent dies without a will, known as dying intestate, then the personal representative petitions the court for Letters of Administration. Both Letters authorize the personal representative to act on behalf of the estate and prove to third parties, such as banks and title companies, that the personal representative may control the estate property.
If My Case Belongs In Probate Court, How Does A Probate Case Get Started?
A Petition for Probate is the first step to starting a probate administration. The petition is a request to the court to initiate the administration process and to appoint a personal representative to act on behalf of the estate. When the petition is filed, the court assigns a hearing date, the petitioner mails notice of the hearing directly to specific parties and publishes notice of the hearing in a local newspaper. The petitioner then attends the hearing if required by the court.
Who Decides Whether The Petition Will Be Approved?
The probate court judge and their staff determine if a petition will be approved. If there are no objections to the petition and the petitioner has satisfied all legal requirements in filing the petition and other necessary documents, the judge will approve it.
Who Will Receive A Notice That The Probate Is Being Started?
These people will receive notice by mail of the petition for probate and its hearing date: all parties named in the will, all heirs at law, all parties mentioned in the petition, and all beneficiaries of a trust if the trust is the beneficiary of a will. Additionally, public notice is given by publishing information about the estate and the hearing date in a local newspaper three times before the hearing.
For more information on Probate Law in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 529-4541 today.
