What Is Probate?

What is Probate?

Nobody voluntarily chooses probate. People are too busy or preoccupied with health or other issues to plan. They pass away without a living trust and their heirs----usually their children---- find that they can't sell Mom or Dad's house without a court order or can't transfer Mom or Dad's bank account without court approval. Even with a will, they may be forced to file a probate proceeding.

Alternatives to Probate

Because probate is expensive and time consuming, a responsible attorney first tries to determine if there is an alternative to probate. In California, the most common alternatives to probate are a Spousal Property Petition (if there is a surviving spouse) or a small estate transfer (if the value of the estate is less than $100,000). If these and other alternatives to probate are unavailable, then the only recourse for the decedent's heirs is to file a probate proceeding.

Cost of Probate

Attorney's fees and costs are set by law in California and are based upon the value of the estate. Here is the statutory fee schedule in California:

4% of the first $100,000
3% of the next $100,000
2% of the next $800,000
1% of the next $9,000,000

What Is Probate?

Probate is the judge-supervised process of paying a decedent's legitimate bills, inventorying and appraising a decedent's assets, and distributing the assets to the decedent's heirs or beneficiaries.

Length of Probate

Most probates take between 6 months and one year. We take pride in the fact that most of our probates are handled without a hearing: in the S.F. Bay Area, this is done through a system of ?pre-granting,? i.e. the judge is willing to sign the proposed order without an attorney making a court appearance.