When a loved one passes, the last thing your family needs is a confusing legal process. We handle probate in all counties of California with regular updates at every step.
The Law Offices of Michael K. Elson has the experience and skill to efficiently handle all aspects of your probate case while providing regular updates and keeping you well informed as to the status of your case.
Probate is the court-supervised administration of a decedent's estate, culminating in an order for the transfer of legal title of property from the estate to the beneficiaries. We handle probates most extensively in Los Angeles County and adjacent counties — Ventura, San Bernardino, Kern, Orange, Riverside, San Diego, Santa Barbara, and even Bay Area counties such as Alameda.
Probate is the process when the court supervises the administration of a decedent's estate, culminating in an order for the transfer of legal title of property from the estate of the decedent to his or her beneficiaries. The process requires the filing of a Petition for Probate and appearances in court. During probate, all known and unknown creditors must be notified of the death and given an opportunity to file claims.
When a person who owns assets dies without a living trust, then probate is usually necessary. Having just a will does not avoid probate. Even if a deceased person did not own any property, sometimes the survivors may decide to open a probate if there are debts owed to the decedent's estate or if there is a need to set a deadline for creditors to file claims.
In general, if the decedent owns any real estate, or owns financial assets exceeding the 2024 probate threshold of $184,500, then probate is required.
The cost of probate is set by California State Law. Total costs may include appraisal costs, executor's fees, court filing fees, a surety bond (which may be waived in some circumstances), probate referee fees, plus statutory attorney fees and accounting costs. On average, total probate costs roughly 5% to 6% of the total estate value when you include publication costs and the cost of the bond — however in some cases total costs can exceed 10%. If there is a will and it is contested, probate litigation could cost many more thousands of dollars. Property you transfer into a living trust avoids probate and will save your heirs thousands of dollars.
Average time for a simple probate is about one year. Some probate cases take several years to resolve, while others can be completed within six months. The average probate drags on for many months or even years before the inheritors receive anything — and by that time, there is less to receive: in many cases, about 5–10% of the property has been eaten up by lawyer fees, court fees, and other probate costs during the process.
In California, probate hearings are in the county where the decedent lived at the time of death. This office can handle probate cases in all counties of California. If there is real property in another state besides California, you will have to file a probate petition in the other state as well. A will becomes a matter of public record when submitted to a probate court, as do all the other documents associated with probate, including inventories of the deceased person's assets and debts.
No. Benefits are usually paid directly to the named beneficiaries. Money from IRAs and 401(k) accounts transfers automatically to the persons named as beneficiaries. Bank accounts set up as pay-on-death (POD) or "in trust for" (Totten Trust) accounts with a named beneficiary also transfer without probate.
There will be a probate action filed in each state where there is real property. Each state has its own method for distributing a decedent's real property. If there is a will, the will is first admitted to probate in the home state, and then must be submitted to an ancillary probate in any other state in which the decedent owned real property.
The person named as executor in the will is typically appointed as the personal representative, responsible for managing the estate and following probate rules and procedures. The executor has no legal authority to act until they are appointed by the court and formal Letters are issued. If there is no will, no executor named, or the person named is unable or unwilling, the court appoints an administrator — usually a relative or beneficiary.
To sell real estate or other assets owned by the estate, the court requires the personal representative to first obtain court permission. The personal representative must also obtain the court's permission to pay fees to themselves, pay fees to the probate attorney, make a preliminary distribution to beneficiaries, or close the estate.
They must locate the decedent's assets and manage them during probate; receive payments due to the estate; set up an estate checking account; determine who is going to receive assets under the will (or under the California Probate Code if there is no will); value or appraise the estate's assets; give notice to creditors; determine the validity of any claims against the estate; pay funeral bills, outstanding debts, and valid claims; use estate funds to pay continuing expenses; arrange termination of utilities, leases, credit cards; file tax returns and pay income and estate taxes; and ultimately distribute the property to the proper beneficiaries and file receipts for distribution.
Usually, out-of-pocket expenses to settle the estate are reimbursed and statutory fees of about 3% of the gross estate may be paid to the executor. If the executor is the sole beneficiary, fees are usually waived.
Federally, a Form 1040 must be filed for the decedent's final year, a Form 1041 Federal Fiduciary Income Tax return for the estate, and possibly a Form 706 Federal Estate Tax return and Form 709 Gift Tax return. The state requires a state income tax return, state fiduciary return, and estate and gift tax returns if applicable. Real estate, personal property, and business taxes must be paid. Any unpaid taxes or unfiled tax returns from previous years must also be accounted for.
If you and your spouse shared the same bank account and credit cards, you may have to pay the bills or debts of your spouse. However, if the credit card or account was opened solely under your spouse's name, you may not be liable.
Step 1: The person requesting appointment as personal representative hires a probate lawyer to prepare and file a Petition for Probate.
Step 2: The probate lawyer mails notice to everyone named in the will and/or all legal heirs, and publishes notice in a newspaper where the decedent lived.
Step 3: The court hearing usually takes place four to six weeks after the petition is filed. The purpose is to determine the validity of the will and appoint the personal representative.
Step 4: The personal representative identifies, takes possession of, and manages the probate assets until debts are paid and tax returns filed — usually about a year.
Step 5: After paying all legally enforceable debts and taxes, the personal representative files a report with the court, which then authorizes distribution of the remaining property among the beneficiaries.
Most extensively in Los Angeles, Ventura, San Bernardino, Kern, Orange, Riverside, San Diego, Santa Barbara, and Alameda counties.
