Probate Administration

What is Probate and What Does It Mean to Administer a Deceased Person’s Estate?

Probate is a legal proceeding commenced after a person’s death that is necessary to transfer the deceased person’s (“decedent”) assets to their rightful heirs, or to the beneficiaries of the person’s Will.

Probate can be initiated by any interested person, such as a family member, by filing a Petition for Probate, however there is a priority of who gets appointed first if multiple people petition. Once the Court appoints a personal representative of the estate, he or she will be responsible for administering the estate, which includes collecting (aka marshalling) decedent’s assets, accounting for the assets, and distributing the assets, all under the Court’s supervision.

Does every decedent’s estate need to go through the probate process?

There are minimum thresholds required to avoid probate. A probate proceeding is required in California if the value of the decedent’s estate is more than $166,250.00, or if the estate contains more than $55,425.00 of real property. If the estate exceeds these minimums, probate will be necessary.

What happens when a person dies with a Will?

When a person dies with a Will, their estate will be When a person dies with a Will (known as dying “testate”), their estate will be distributed according to the terms of the Will. Typically, the personal representative of the estate is the executor named in the Will. After the will has been admitted to Probate, it becomes the instructions of how the estate is to be distributed and the Court will order distribution according to the decedent’s wishes after the administration is completed.

What happens when a person dies without a Will?

When a person dies without a Will (known as dying “intestate”), the Court will distribute the decedent’s assets according to California intestacy laws. People entitled to a share of the estate will typically be determined by their familial relationship with the decedent. 

How long does probate take?

Every probate involves issues specific to decedent’s circumstances and some probates can take longer than others. The average uncontested probate takes approximately 12-18 months from the issuance of Letters. This is true in Los Angeles and Orange Counties, but in other counties the length of time for the administration may be less. During the probate process, if complex issues, disagreements between beneficiaries, or substantial creditor’s claims filed, the process can take much longer.

How much does probate cost?

Costs of probate are divided into administrative costs, attorney’s statutory fees, attorney’s extraordinary fees, personal representative’s commission and personal representative’s extraordinary fees.

Administrative Costs – Every probate proceeding requires costs to administer the estate including but not limited to, filing fees, bond premiums, publication costs, and probate referee fees. These costs are paid by the Estate but, many times at the beginning of the Probate, the client will advance those costs out of pocket.

Attorney’s Statutory Fee – There are two types of compensation provided to attorneys, statutory compensation and extraordinary compensation. Ordinary compensation is paid to an attorney for ordinary estate administrative services. Statutory compensation is defined by statute and set forth as follows:

Attorney’s Extraordinary Fees – Extraordinary compensation is for services that fall outside of what is considered ordinary and can involve coordinating the sale of real property, litigation, carrying on decedent’s business pursuant to court order, defense of personal representative’s accounting, securing a loan to pay estate debts. Should a probate require extraordinary services, the attorney will be compensated based on hours spent and will bill the estate at his/her normal rate.

Personal Representative Statutory Commission – Compensation provided to the personal representative of the estate is structured in the same way as the attorney’s compensation and is paid to the personal representative for services rendered during administration of the estate. All compensation to the attorney and/or personal representative must be approved by the Court prior to payment. Statutory commissions are defined by statute and set forth as follows:

• 4% of the first $100,000 of the gross value of the estate
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $2.5 million

Personal Representative Extraordinary Commission – Extraordinary compensation are for services that fall outside of what is considered ordinary. Such services may involve the sale of real property, litigation matters, travel for administrative purposes, or other extraordinary matters. Compensation is paid on an hourly basis if the court determines that they are appropriate extraordinary services.

What are the duties of the appointed personal representative?

The personal representative is also known as the “Executor” (decedent died with a Will), “Administrator” (no Will or not named in the will), or “Special Administrator.” A special administrator is appointed by the Court to be responsible for the decedent’s property for a limited time or during an emergency. Serving as personal representative of an estate involves acting as a fiduciary and properly managing and caring for the estate property during the probate proceeding. The personal representative is required to use “ordinary care and diligence” as “determined by all the circumstances of the particular estate.” Probate Code § 9600

Some of the most important tasks you will do as a personal representative include the following:

• Marshalling Assets –the personal representative must take possession or control of decedent’s property so that the assets can be administered in the decedent’s estate. This also includes protecting real estate, identifying stocks, bonds, and mutual funds, retitling each asset in the name of the Estate, collecting or receiving rents, profits, or proceeds from the real and personal property of the estate until the estate is ready to be distributed.
• Dealing with Creditors – the personal representative must notify potential creditors of the probate proceeding and evaluate any creditor’s claims filed with the Court.
• Handling Decedent’s Expenses and Liabilities – the personal representative is obligated to pay decedent’s debts and liabilities, including funeral expenses and any taxes owed.
• Keep Beneficiaries Informed – the personal representative is obligated to keep beneficiaries informed of the progress of the probate proceeding and is required to notify beneficiaries prior to performing many of the necessary tasks needed to complete probate, such as filing petitions, selling property, or making distributions.
• Distributing Estate Assets – the personal representative must distribute all assets remaining after all debts, taxes and costs/fees have been paid, as directed in decedent’s Will or in accordance with the laws of intestate succession (inheritance without a Will) to beneficiaries.

Why do I need an attorney to do a probate?

An attorney with the expertise and knowledge to help you through the probate process is invaluable. The Law Office of Matthew C. Yu has the expertise and knowledge to assist you throughout the entire probate process. They will guide you through creditor’s claims, getting assets re-titled, gaining access to safe deposit boxes, and everything else that must be done. They will make sure you meet all deadlines, avoid mistakes and delays, and can assist in settling disagreements among family members over minor or major issues. The Law Office of Matthew C. Yu will represent you to help navigate the Court’s requirements for the administration of a probate estate so that the administration can be completed efficiently.