Is A Probate Attorney Necessary In Los Angeles?
Updated: Dec 28, 2022
When is a good idea to consult with a probate attorney in Los Angeles?
In California, probate is not an incredibly demanding procedure, and when a loved one dies, many legal shortcuts help several families escape probate court altogether. But in California, probate may have one major drawback: choosing the right California probate lawyer. The California State Bar has approved and certified lawyer referral services to assist the public in finding reputable, experienced, and ethical California probate lawyers.
Is Probate Necessary in California?
Probate isn't always necessary. If the deceased person owned properties in joint tenancy with someone else, with his or her partner, or in a living trust as survivorship community property, those assets would not need to go through probate. The same applies to properties kept in a revocable living trust and accounts regarding which a payable-on-death beneficiary has been appointed.
With a simplified process, properties inherited by the surviving spouse or registered domestic partner may also be transferred using a document called a Spousal (or Domestic Partner) Property Petition. The probate court is involved, but the procedure is straightforward and quick. No restriction can be made to the value of the property.
It might not be appropriate for other properties to go through probate. If the estate's overall value (assets that can not be passed to inheritors in either of those different ways) is sufficiently minimal, probate would not be needed.
Currently, the limit is $166,250 dollars. With a simple sworn declaration (affidavit), inheritors can claim the estate or undergo a simplified summary probate process. Cal., Cal. Code of Probate § 13100.
Method for Simple Probate in California
Someone must come forward to start the process of probate is necessary. The executor mentioned in the will can get the ball rolling if there's a will. If there is no will, or if the person named to serve as executor is not eligible, a family member usually requests the court to be appointed as the estate's "administrator." The work is the same.
The executor's job will likely last six months to a year. Next, the executor files the will with the probate court in the county where the dead person resided, along with a form called "Petition for Probate." There is an approximately $435 filing fee; some counties charge a little more. It may also be appropriate to file certain forms, and formal notifications must be issued to recipients, relevant family members, and creditors.
If there is one, the will must be proven to be true; this is generally achieved by making the witnesses sign a sworn document presented to the court. The court issues "Letters Testamentary" or "Letters of Administration" when all is in order. Appointing an executor and giving that person control over estate properties.
Once the executor has this control, collecting the deceased person's properties will begin. It's also time for the executor to organize himself, set up a filing system so that benefits and bills are not forgotten, apply for the estate's taxpayer ID number, and open a bank account for the estate. The executor would need to compile an inventory and valuation of all probate land and file it with the court.
If this all seems daunting, note that not all of it needs to be completed at once. It requires a lot of paperwork (and generally, phone calls), but most well-organized and diligent people can do it. And from family members or an attorney who knows the procedure and can act as a reference, the executor can still get help.
Most California probate cases are done under the State's Separate Administration of Estates Act, enabling the executor to take care of most matters without the probate court needing approval. Usually, the executor may sell land, pay taxes, and accept or deny creditors' claims without court oversight. Specific other actions need court approval, such as selling real estate. Cal., Cal. Code of Probate § 7261.
It's the executor's duty during the probate process to keep all assets secure. For instance, a house must be insured and maintained; heirlooms must be secured from theft or injury. For the deceased person and the assets, the executor is often liable for filing tax returns.
Creditors have four months in California to come forward with their allegations. Several estates receive no formal claims from creditors; instead, the executor simply pays unpaid bills (for final illness expenses, for example). However, if there is not enough money to pay all legitimate claims, state law sets out the order in which claims from estate assets are to be paid—California Probate Code § § 9050 et seq.
Finally, the executor asks the tribunal to close the estate until all expenses and taxes have been paid. That's when the executor will allocate all the estate properties to the persons who inherit them.
California Probate Attorney Fees
Lawyers bill by the hour in most states or receive a flat fee for probate practice. In California, not so. It's one of only a few states requiring lawyers to charge a "statutory fee," a sum that is a proportion of the value of the assets going through probate. In-state laws, the ratios are set out. (Cal. Code of Probate § § 10810, 10811.)
The latest rates are here:
4% of the first $100,000 of the probate estate's gross value
Of the next $100,000, 3 percent
2 percent of the next 800,000 dollars
1 percent of the next nine million dollars
.5 percent of the next 15 million dollars
A fair amount for sums over $25 million (determined by the court)
In fact, compared to the amount of actual work done, this means that the fees of probate lawyers can be very high. Probate is normally a matter of filing papers; there is no trial, and no court appearances can occur.
So, let's say a $600,000 house you own in your name alone, plus some bank and brokerage accounts, and a car, is in your probate estate. The amount is $900,000 in total. The attorney's statutory fee for very little paperwork will be $21,000.
But wait, what if there's only $200,000 to pay off your mortgage, reducing your $400,000 worth of equity? Depending on the probate properties' total value, the attorney's fee will also be $21,000, not what you currently own.
California probate lawyers can charge by the hour or charge a flat fee. They do so because the statutory charges cover legal fees for them. And the payments are for everyday work only. The probate lawyer may charge additional fees if there is anything "extraordinary."
Is an estate planning attorney necessary for a probate case?
Probate is mostly a matter of paperwork unless people are battling over the land. The paperwork in California is mainly fill-in-the-blank forms issued by the state's Judicial Council. In the "California Judicial Council website " section in the probate category, all those forms are free.
Nevertheless, possessing types and understanding what to do with them are different things. It takes executors through the entire process and provides all types with step-by-step instructions.
Many executors find that they can administer a California probate themselves with the correct details as long as there are no unusual problems, such as a battle for an inheritance, more debts than assets, confusion over who to pay, or an ongoing business.
How to find a pre-screened estate planning lawyer in Los Angeles?
You can submit a request online 24 hours a day. Free case review within 15 minutes.
By chat, you'll be connected with a Los Angeles estate planning lawyer within 5 minutes.
By calling the 24-hour lawyer referral hotline at 1-661-310-7999
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