When a loved one passes away, his or her estate often goes through either a court-managed process called probate, or trust administration, where the assets of the deceased are managed and distributed. If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased's assets. The length of time needed to complete the administration of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
We encourage you to schedule a free consultation where we can discuss the process, review your documents and make recommendations helping you decide if we are the right firm to guide you in this challenging process.
Every case is unique, but most involve the following steps:
Filing of a petition with the probate court.
Notice to heirs under the Will or to statutory heirs (if no Will exists).
Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
Inventory and appraisal of estate assets by Executor/Administrator and a Probate Referee.
Payment of estate debt to rightful creditors.
Sale of estate assets.
Payment of estate taxes, if applicable.
Final distribution of assets to heirs.
FREQUENTLY ASKED QUESTIONS
What happens if someone objects to the Will?
An objection to a Will, also known as a “Will contest”, is a fairly common occurrence during the probate proceedings and can be costly to litigate.
In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example some children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.
Does probate administer all property of the deceased?
Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.
Certain types of assets are what is called “non-probate assets” do not go through probate. These include:
Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and does not go through probate.
Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
Life insurance policies.
Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.
Do I get paid for serving as an Executor?
Yes. Executors are entitled to statutory fees, which vary on the size of the probate estate. The Executor has to fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets in his or her care.
How much does probate cost? How long does it take?
The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a Will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 2% to 7% of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.
Can I administer an Estate Without an Attorney?
Losing a loved one is emotionally difficult, even when death is expected. Dealing with the complexities of a loved one’s estate can be an overwhelming experience. When counseling clients in estate planning, Ken tells them that you are doing no one a favor by appointing them as your trustee or executor; it is they who are doing you a favor if they agree to serve.
There are complex procedures involved in the administration and distribution of the assets of an estate. While many people want to handle everything themselves to save money, most people have no idea what needs to be done, and when the administration of an estate is delayed because the trustee or executor is trying to learn about what he or she needs to do, litigation often results.
As a Certified Specialist in Estate Planning, Probate & Trust Law, as certified by the State Bar of California Board of Legal Specialization, Ken and his team know how to expedite the process of probate and trust administration. Our team is committed to guiding those charged with fiduciary responsibilities through this process efficiently and effectively. However, complicated tax and other issues can arise, and the executor, administrator or trustee may be required to defend claims against either him/her or the estate. The fiduciary's performance may be questioned by disappointed relatives or other beneficiaries and creditors who have claims against the estate. Fiduciaries can be sued for various reasons, including suspicion of financial negligence. Our team has extensive experience in forestalling if possible, and if not possible, handling these lawsuits. Ken Kossoff will help you define and carry out your duties as executor, administrator or trustee no matter what obstacles arise. If you need assistance in any of these areas, do not hesitate to call us.