Probate is the process by which legal title of property is
transferred from the Decedent’s estate to his or her beneficiaries.
If a person dies with a will, which is called testate, the
probate court determines if the will is valid, hears any objections to the will,
orders that creditors be notified and paid and supervises the process to assure
that property remaining is distributed in accordance with the terms and
conditions of the will. If the will
nominates an executor, the court will appoint that person to act as executor of
the estate barring any objections.
If a person dies without a will, which is called intestate,
the probate court appoints a person called an administrator to receive all claims
against the estate, pay creditors and then distribute all remaining property in
accordance with the laws of the state.
The major difference between dying testate and dying
intestate is that an intestate estate is distributed to beneficiaries in accordance
with the distribution plan established by state law; a testate estate (after
payment of debts, taxes and costs of administration) is distributed in
accordance with the instructions provided by the decedent in his or her will.
In California,
the typical cost to probate an estate based on the following formula determined
by the value of the gross estate. Both
compensation for serving as personal representative and attorney’s compensation
for serving as probate counsel will be set by the court toward the end of the
administration of the estate. The
California Probate Code sets forth a statutory compensation schedule for the
computation of compensation payable to estate representatives and to attorneys
in connection with “ordinary services” rendered during estate
administration. That compensation
schedule, based on the size of the estate probated, is as follows:
4% on
the first $100,000
3% on
the next $100,000
2% on
the next $800,000
1% on
the next $9,000,000
1/2% on
the next $15,000,000
“reasonable” compensation on the
excess over $25,000,000
Additionally, probate can tie up the property and other estate
assets for months and sometimes even more than a year.
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