Probate is the process used by a California court to distribute the assets in the estate of a deceased person. Probate affects assets that are included in a Will and not included in a Trust. A court will probate the estate of anyone who passes-away unless the deceased individual has created a trust. If the person dies without a will, or a trust, they are said to die intestate; if a person dies after having formed a will, but did not create a trust, they are said to die testate.
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California probate is undertaken when you pass away and leave property that is not distributed to your beneficiaries in a trust or has not been included in your Will. To avoid a California probate, you should create a trust. Tom minimize the costs involved with a California probate, you should create a Will.
This is any property you have in your estate with a designated beneficiary. This property will be distributed after the California probate process is complete. Retirement accounts, life insurance, property held in joint tenancy all pass to the intended beneficiary you designated on the instrument and are not subjected to a California probate.
California Probate Estate
A California probate estate is any and all property that is transferred into a decedent’s estate by either the deceased person’s Will and/or under California Intestacy law You can avoid intestacy by including your assets in a Will. Any assets contained in you Will will not be probated under California intestacy law. A Will is one of the most important and necessary steps you can take to plan the distribution of your estate following your death. A Will provides for the plan of distribution of your estate after your death for your spouse, any children, other family members, pets, friends, and charities.
You avoid creating, in part, a California probate estate when you transfer your assets using a Non-Probate Instrument such as a Revocable Living Trust, a life insurance policy, a payment on death contract, a legal life estate, or by entering into a joint tenancy.
In California, the probate courts have the responsibility to determine how an estate will be administered. Part of the administration process includes determining what assets belong to the deceased person’s estate and how those assets will be distributed. When an estate is probated, all the assets of the deceased person’s estate are distributed to beneficiaries after the estate makes payments for taxes, administration, and court fees.
To control who is to receive the assets of your estate when you die, you must have a valid will and/or a valid trust. To avoid probate, you only need to have a valid trust.
In California, there are statutory fees which were established by the California legislature and which are paid to the court to a trustee or an administrator as compensation for handling the probate of the decedent’s estate. These fees are deducted from the estate before any distributions are made to beneficiaries. Both the personal representative (administrator) and the attorney who handles the estate are entitled to a fee which is based on the gross value of the estate. Each one is entitled to the following amounts:
- 4% on the first $100,000
- 3% on the next $100,000
- 2% percent on the next $800,000
- 1% on the next $9,000,000
- ½ of 1% on the next$15,000,000
- A reasonable amount determined by a court for all amounts above $25,000,000.
- Additional fees for extraordinary services.
There is also a court probate referee who is compensated with a commission of one-tenth of 1% of the total value of the appraised assets. The probate referee will receive a minimum fee of $75 and a maximum fee of $10,000. This referee may petition the court for a higher fees if the reasonable value of the services they provide is more.
In your Will, you can name a guardian for your children who are under age 18. The probate of the will and the appointment of guardians are done in two separate court proceedings. If your Will nominates a guardian, that nomination is one of many factors that a judge will consider during a guardianship proceeding.
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