Knowing what you own and how you own is the easiest way to avoid probate. Not understanding these things and working to avoid probate could cause stress, excessive costs, and discontent for your family.


Following death, the process of finalizing a person’s legal and financial affairs is called probate. In California the Superior Court of the county a decedent lived handles probate proceedings. This process can last as little as 8 months, taking multiple years in some cases.


If a will is present whoever is nominated as the executor of files will file a petition with the Superior Court requesting appointment as the executor. In cases where no will is present a comprehensive directory of individuals with priority to petition for appointment as administrator is provided. The petition and will are filed simultaneously. Relatives and/or heirs are given notice of the hearing date. During the hearing any disputes involving the will’s authenticity and objections to the petition will be handled. In certain instances this could mean that the authenticity of the will is overturned. It could also result in another person being chosen to administer the estate. Petitions are however granted in most cases to the original petitioner. Inventory of the estate’s assets are taken and managed, creditors are located, bills are paid, and the executor files tax returns. At the conclusion, a petition with the court is filed requesting that the estate be distributed amongst the remaining heirs. Once granted the completion of estate administration is achieved through distribution of assets to heirs and filing of final tax returns.


Maximum statutory fees allowable by attorneys for probate is set in California Probate Code section 10810. In complicated cases, with lawsuits or tax problems, the court can sanction higher fees.

  • Four percent of the first $100,000
  • Three percent of the next $100,000
  • Two percent of the next $800,000
  • One percent of the next $9,000,000
  • One-half percent of the next $15,000,000.
The court will determine fee for any estate larger than $25,000,000.

The inventory of an estate is used to determine its value. Attorney’s fees are not discounted on the account of debt. For instance, a house carrying a $10 million appraisal, yet holding a $8 million mortgage, is considered a $10 million asset when determining attorney fees.


Probate referees appointed by the State Controller appraise the estate and establish fair market value. Mortgages and other debts are included in fair market value and can cause the appraisal of the property to be higher than equity owned in the property by the deceased. One percent of the appraised assets are provided to the Probate Referee for fees.


A judge controls all proceedings. He has the power to rule over disputes between heirs and heirs and the executor. Within four months creditors are required, by law, to submit claims against the estate, providing that they have been notified of the probate. The executor must submit proper reports of accounting.


A living trust is far less expensive for estates valued at the same amount. Also, a trust will usually take less time to administer. Supervision by the court is not necessary if disputes don’t arise.

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