Probate Basics
On this page we discuss probate, steps to avoid it
and how to handle small estates that avoids the
need for court probate.
Probate is a court supervised process which is required
of many estates after death. It is the means by which property is passed
on to one's heirs. You may have noticed that there are a number of attorneys advertising ways
to avoid probate. If you don't know what that is about, consider the following:
Probate is a lengthy process
Probate refers to a court proceeding that requires the filing of numerous forms and
documents and is meticulously supervised by the courts. The probate of an estate will
usually last more than six months and may take years. During that time, property you owned
together will be tied up and you may have restricted or no access to important funds and
accounts. The sale of property may be complicated by the need for court approval of the
terms of sale.
Both the executor and the attorney for the estate are entitled to be paid fees for
their work during a probate. While their fees are regulated by the state, they can be
considerable and unnecessary.
For example, the fees in an uncomplicated estate that is worth $150,000 will be about
$4,150 for the executor and the same amount for the attorney.
The following table sets forth the
California statutory fee schedule for the Executor of the
estate and the attorney for the estate.
| Probate Fees (for Administrator and Attorney, each) |
Size of Estate (Gross Value) |
| 4 % of first |
$100,000 |
| 3 % of next |
$100000 |
| 2 % of next |
$800,000 |
| 1 % of next |
$15 million |
A fairly modest estate of a home, automobile, furniture and IRA or
pension can easily reach $200,000 in value. The probate fees for each the executor and the
attorney will be $7,000. Additional fees are added for such things as the sale of
assets, tax matters or other extra activity.
Should I Plan to Avoid Probate?
The answer to that question is probably yes. Exceptions would be where there would be
some value in having a court oversee the process of distribution of your estate, such as
where there is a question of competence or whether your wishes will be carried out. If you
have questions about this decision, discuss it with an attorney.
Some of the effective ways of planning to avoid probate of an estate are discussed
below. If
your property fits in any of the following categories, you may be able to avoid probate in
these specific situations under California law:
Living Trust
See the discussion of
living trusts elsewhere for more
information about this device for avoiding probate.
Joint accounts
See the discussion of joint accounts elsewhere for more information about this device
for avoiding probate.
If your estate is below $100,000 and there is no real estate, there is a simplified
procedure for handling the estate after death. Automobiles do not count in the $100,000
limit and there are several other exclusions that make this a useful approach for many
people. There is an affidavit (California Probate Code §13100) to complete and much of
your property can be transferred in this way.
Real Property Less Than $20,000
If the gross value of all real property in California is worth less than
$20,000, it may avoid probate and can be
transferred by a "Affidavit Re Real Property of Small Value" (California Probate
Code §13200) (This is a state printed form, Judicial Council form
DE-305 which can be found at the
Judicial
Council Forms site under the Probate-Decedents Estates section).
Motor Vehicles
A simple, non-probate procedure is available to transfer title to automobiles and
registered boats in California.
Where there is no other property that needs to be probated, a person named in a Will or
an heir of a deceased person can complete a declaration and submit it to the Department of
Motor Vehicles in order to transfer title to a registered motor vehicle from the deceased
to themselves.
This same method is used when the vehicle was transferred to a living trust. A form for
this purpose is available from the DMV. You will have to present the registration form as
well.
Mobile Homes
The procedure to transfer title to a registered mobile home is similar to that for a
motor vehicle. The form to do so is available from the California Department of Housing
and Community Development. You must wait for 40 days after death for this procedure.
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