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  • I have a small estate. Does it have to go through probate?

    In California, estates that are valued at more than $100,000 (including only probate assets) generally have to be probated. There are exceptions made if the decedent is survived by a spouse. If an estate includes real property it must be probated if the real property is greater than $30,000.

  • What is a probate asset?

    Assets held only in the name of the decedent are generally probate assets. But an asset is not counted as a probate asset if it is owned in joint tenancy or if there is another means of determining who receives the asset after death of the owner, such as beneficiary designations for life insurance and IRAs. If those designations have been made, the asset avoids probate, otherwise it will be added to the estate and probated.  If there is a surviving spouse, a formal probate can usually be avoid with a spousal property petition.

  • What is an executor?

    The executor is the person who is responsible for management of the probate estate, which includes preparing an inventory, paying bills, filing taxes, and distributing the estate after a court order is obtained. The executor is nominated in the will. If there is no will, or if all of the executors who are nominated have died or are unwilling to serve as executor, state law provides that the decedent's closest relatives have the highest priority to become executor. 

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  • How does the probate begin?

    It begins with the filing of a petition for probate at the Superior Court in the county in which the decedent resided.  The petition is usually prepared by the attorney for the person who wants to become the executor or administrator. The petition for probate provides details about the person who died, details about the executor, and information about the heirs. The petition also includes information about the size of the estate and whether bond will be required.

  • Who decides whether the petition will be approved?

    The decision is ultimately up to the judge who hears the case, but the preliminary work is done by a court staff member who is called the probate examiner. The probate examiner reviews the file, makes sure that state laws are complied with, and makes a recommendation to the judge that the petition be approved or denied. If the petitioner disagrees with the recommendation, a hearing will be held to give the petitioner a chance to present his or her case.

  • What are the executor's duties?

    Administration of the estate includes managing the assets to prevent losses, paying bills for the estate, filing tax returns, preparing an inventory of the assets, locating heirs, and dozens of other duties. The goal is to wrap up all of the loose ends of the decedent's financial affairs and distribute the estate to the beneficiaries without further legal problems.

    How long does an average probate take?

    If the probate has no unusual problems, it could be concluded in about eight months. That period includes a four-month creditor's claims period, and the time it takes after a petition is filed before it is actually heard. Due to crowded court calendars, hearings are often held six weeks or more after the petition is filed. There may be other problems with creditors, taxes, or will contests that will delay the probate for longer periods.

    How can someone see the will of a person who has died?

    If the estate is in probate, you can go to the Superior Court in the county in which the decedent lived, and ask to see the file. The file will include the will and all other documents that have been filed in the case.

    Who will receive a notice that the probate is being started?

    State law requires that notices be sent to all of the heirs of the decedent, beneficiaries who are mentioned in the will, and proposed executors. The notice will state the date and time of the hearing and the courthouse where the case will be heard.

    I went to one of those hearings and I didn't hear any testimony. What was happening?

    In most counties, if the case has been approved by the probate examiner's office, and no one has indicated that they intend to contest that decision, the hearing is minimal:  The judge calls the names of the cases on the "approved list." If no one stands up to object when the case is called, the order will be signed without having to hear testimony. If you want to raise an objection to any petition, be sure to call the probate examiner's office, or the attorney for the opposing side, to make your objection known before the hearing.

    How much does probate cost?

    The table below shows the fees for attorneys and executors, as provided by the California Probate Code.  More information about probate is available on the probate page.

    Estate Value
    Statutory Fee

    $100,000

    $4,000

    $200,000

    $7,000

    $300,000

    $9,000

    $400,000

    $11,000

    $500,000

    $13,000

    $600,000

    $15,000

    $700,000

    $17,000

    $800,000

    $19,000

    $900,000

    $21,000

    $1,000,000

    $23,000

    $2,000,000

    $33,000

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  • If I have a trust, why do I also need a will?

    The type of will that is used with a living trust is called a "pourover will," because its purpose is to pour (transfer) assets into the trust if the assets had not been transferred to the trust previously. This can occur if the trustees fail to make the transfers of assets to the trust, or if mistakes are made in titling the assets. A pourover will doesn't have the usual provisions that are found in a standard will and the only beneficiary is the living trust.

  • Does a pourover will have to be probated?

    Probate is not required unless the assets that are subject to probate total more than $100,000. In that case, there will be a probate of the trust assets and also an administration of the trust assets.

     

  • What are probate assets?

    Any asset that is in the decedent's name, and not in joint tenancy or in a trust. Assets that are not subject to probate include IRAs, 401Ks, and life insurance, assuming that a beneficiary has been named to receive the assets involved. Even these assets might be subject to probate if the beneficiary listed is the "estate" of the decedent or if no beneficiary is listed. Joint tenancy assets become the property of the surviving joint tenant, regardless of the provisions of the decedent's will or trust.

     

  • Do trust documents become public information when someone dies?

    California law requires that notice be given to trust beneficiaries and the decedent's heirs if all or part of the trust becomes irrevocable after the death. The beneficiaries and heirs are then given an opportunity to request a copy of the trust. The trust might become public information is there is a court challenge to the trust, in which case a copy of the trust will be filed with the court.

  • Who should be chosen as the successor trustee?

    Many clients choose their children, either as co-trustees, or in a specific order of succession. This can be a good choice, particularly if the proposed trustee has some experience with accounting or taxes. If there are no children, or if the clients would rather not use their children as trustees, other choices are other relatives, friends, or trust companies and banks. However, the person chosen as trustee must be responsible and able to devote the time required to the trust administration and management. The proposed trustee does not need to have an extensive knowledge of trusts, law, or accounting, but should be willing to seek professional help to carry out the administration of the trust.

  • Who receives my estate?

    The distribution plan for a trust can be the same as the distribution plan in a will.  You can give your estate to your children, set up trusts for them if they are too young to receive an inheritance, make charitable gifts, or make gifts to beneficiaries outside of your family.  The decision is yours.  However, whenever a distribution is made to an individual beneficiary, a provision should be included that says who will receive that distribution if the original beneficiary does not survive the trustor.

  • Do I need a federal tax number for the trust?

    No. A federal tax number is not needed for a trust for a married couple until one of the trustors dies, or both trustors resign as trustees or become incompetent. For a trust for a single person, a federal tax number will be required after the trustor dies. Until death or resignation, the trustors' Social Security numbers will be used as the trust tax number.

  • What is a special needs trust?

    The beneficiary of a special needs trust is usually receiving benefits from a government program for the indigent. Those benefits will stop if the beneficiary receives an inheritance because these programs have strict limits regarding the amount of income and assets that a beneficiary can receive. A special needs trust provides a source of money that is held by the living trust and paid in small amounts either to the beneficiary, or for his or her benefit. The trustee will not pay any amount to the beneficiary that would increase his or her income or assets beyond the limits set by the government program and cause the government benefits to stop. The trust can own certain assets that are available to the beneficiary, such as a car.  After the death of the beneficiary, the balance of the trust fund will be distributed to other trust beneficiaries.

  • What is a Qualified Domestic Trust?

    If the surviving spouse is not a U.S. citizen, no marital deduction is allowed unless the assets to be transferred to the surviving spouse are instead transferred to a qualified domestic trust, also called a QDT. The marital deduction allows married couples to transfer assets between themselves at death without subjecting those assets to the federal estate tax. At least one trustee of a QDT must be a U.S. citizen or a domestic corporation, such as a bank or trust company. The trust document must also provide the no distribution can be made from the trust unless the trustee who is the U.S. citizen or domestic corporation has the right to withhold federal estate taxes from the distribution.

  • Do I really need to read all of the pages of the trust before I sign it?

    Yes, although the trust may be lengthy, you are expected to be familiar with its basic provisions and you should ask your attorney for an explanation of any parts of the trust that you do not understand. If a trustor does not understand the provisions of the trust, it might be declared an invalid agreement if it is challenged in court.

  • If I start a bank account for my trust, will it be covered by FDIC insurance?

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