The question “Do I need a lawyer for probate in California?” is very important to answer considering the number of possible interested parties in a decedent’s probate assets. The California probate process aims to provide family members and other beneficiaries the means to properly distribute the assets of a family member who passed away. Fortunately, the law provides remedies for creditors and heirs to properly settle disputes and give every rightful beneficiary what is due.
An experienced probate lawyer will be of great help in going through every legal process in the probate court. Going through probate means collating all assets of the deceased, dealing with the creditor’s claims, and the proper distribution of assets. This is no easy task, and this also requires extensive knowledge of probate law. A probate lawyer in California can help you in every step of the process.
Is Probate Necessary in California?
As a general rule, in California, probate is required. However, there are instances when assets are automatically transferred to their assigned beneficiaries.
One example is in the case of a real property owned by a deceased spouse. Such property shall automatically be transferred to the surviving spouse. There is no need to go through probate and no court approval.
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What Does a Probate Lawyer Do?
A probate attorney is an expert in the area of probate law. Probate is defined by California law as the legal process by which a decedent’s estate is distributed to his heirs or beneficiaries. A California probate lawyer can help you with other probate matters, such as creating wills and trusts.
To simplify, a probate lawyer can assist you with:
- Probating a will and administering a probate estate;
- Contesting a will; and
- Handling creditor claims against the estate.
How Much Does a Probate Attorney Charge?
The attorney’s fees of a California probate attorney vary. Section 10810 of the Probate Code provides for the following charges for ordinary services rendered by a probate attorney, based on the estate value:
- 4% on the first one hundred dollars ($100,000);
- 3% on the next one hundred dollars ($100,000);
- 2% on the next eight hundred thousand dollars ($800,000);
- 1% on the next nine million dollars ($9,000,000);
- 0.5% on the next fifteen million dollars ($15,000,000); and
- For those whose value of the estate is above twenty-five million dollars ($25,000,000), the amount of compensation shall be determined as reasonable by the court.
Questions You Need to Answer Before Hiring a Probate Lawyer in California
Are There Any Disputes Among Beneficiaries of the Estate?
There are cases when family members do not agree to the will’s provisions. Others would have different interpretations, which result in will contests. Disputes among family members over the properties and other assets of the deceased can be nerve-racking and require intervention from an experienced probate lawyer. A probate lawyer can act as an intermediary and help transfer the assets and properties of the deceased to their rightful beneficiaries.
Are the Estate Assets Sufficient to Pay Debts?
Suppose the estate assets are more than enough to pay for the deceased’s debts, including other expenses such as funeral expenses or any other outstanding debts. In that case, there is no need to utilize the services of a lawyer. All that is needed is the proper application of the assets to their corresponding obligations. However, if the estate assets are insufficient to pay all obligations, then there is a need for the help of an attorney. There could be creditors who will not be satisfied given to them by the deceased’s will. A probate lawyer will help you determine which creditors should be paid and how much of the estate you can pay them.
Can Assets Be Distributed Outside of Probate?Â
In an ideal situation, the deceased’s assets may be transferred without the need for probate. Such circumstance only happens if the deceased has appropriately arranged to distribute his assets in his will or settled obligations before his death. Other instances when probate is not needed are when assets are distributed through joint tenancy or beneficiary of an asset. Assets held in a living trust also do not need to pass through probate.
Does the Estate Qualify for Your State’s Simple “Small Estate” Procedure?
If one can avoid the probate process, it would be more convenient and less costly for all parties involved. In addition to probate avoidance, another way to save costs is to avail the Small Estate procedure. Such a procedure is available in all states. It is an out-of-court process requiring only the submission of sworn affidavits to institutions with the deceased’s assets. This process is a simpler alternative and faster than the usual probate process.
Does the Estate Only Have Common Assets, Such as a House, Vehicles, Brokerage or Bank Accounts, and Household Goods?
An estate may also include businesses, commercial real estate properties, and other assets that need management and close attention to sustain. The death of a business owner may be detrimental to the continuity of the business, especially if they are the only ones who know how to run them. If the deceased has multiple bank accounts and no one knows about them and how they work, the estate will most likely end up with many fees that can be avoided if someone familiarizes themselves with the accounts. An experienced probate attorney understands this and deals with such problems accordingly.
Does the Estate Owe Federal Tax?Â
Almost all estates do not owe any federal tax. As the current probate laws provide, there is a 99% chance of an estate not having any federal tax obligation. However, this is different when speaking about state taxes. Every state imposes different estate tax obligations, and this should be checked. Make sure to contact a tax lawyer to help with the estate and take care of any other state taxes that may be due before distributing the estate’s funds.
Is an Estate Planning Attorney Needed for a Probate Case?
An estate planning attorney is necessary when estate planning and estate settlement overlap. That may be the case when you have not done your legal documents to plan what will happen if you die. Another circumstance is when you did prepare trust documents and beneficiary designation forms. Still, the people who received your property upon death cannot or do not want to complete an independent fiduciary role with your assets.
Contact a Probate Lawyer in California for Help With Your Estate Planning
If you’re looking to get help with your estate planning, whether it is a simple will, living trust, or power of attorney for health care (Living Will) and finances (Power of Attorney), the first step you should take is to contact an experienced California probate lawyer.
Contact us now at Alden law Firm and get legal advice from our California probate attorney. Call us at (213) 214-6937 for a free consultation.