What is a probate lawyer?

A probate lawyer is a lawyer who practices in probate court. Cases in probate court are governed by the California Probate Code, a separate set of codes/laws from the California Code of Civil Procedure and the California Civil Code. Generally, probate court cases involve either an estate, a trust, or a conservatorship.

What is a probate?

After someone has passed away, there is a legal proceeding (typically referred to as a “probate”) to settle the person’s outstanding debts and transfer his or her remaining assets to his or her family members, friends, or next of kin. The person in charge of the estate is referred to as the “personal representative.” If the person had a will, the person in charge is also known as the executor or executrix, and if the person had no will (i.e. died “intestate”), the person in charge is referred to as the “administrator” of the estate.

How long does a probate last?

Probates typically last anywhere from 10 months to 1 1/2 years. Some of this time is due to statutory notice and waiting periods and delays in obtaining court hearings. Other delays can occur due to complications with a decedent’s property or sale of property, winding down a decedent’s business, or if the decedent was involved in a lawsuit (or if litigation is needed on behalf of the decedent after he or she has died). In some cases, the personal representative of the estate may not be doing their job properly, and the beneficiaries may engage in litigation to replace the personal representative, challenge an action taken by the personal representative, or force an accounting of the estate’s assets.

Do I need a probate lawyer?

While you do not “need” a lawyer in a probate proceeding, it is strongly recommended that you hire a probate or estate attorney to help you through the probate process. One simple reason is that the lawyer will make all court appearances for you, meaning that you will not have to take time out of your own schedule to attend court hearings.

More importantly, a probate lawyer will be familiar with both the Probate Code and the court’s local rules and procedures and will be able to help you through the probate process as quickly as possible.

Typically, parties who represent themselves in probate proceedings will delay the process of closing out the estate by at least 1 year. This means that the decedent’s family will not receive the assets from the estate until approximately 2 years after the person’s death. Usually, there is both a delay at the beginning of the proceeding to have the correct person officially appointed as the personal representative of the estate by the Court, and there is a delay after the personal representative has been appointed in following the correct procedures to prepare a final accounting and have the estate’s assets transferred to the family members.

In addition, the personal representative is a fiduciary who has legal responsibilities to both the estate’s beneficiaries and creditors. If the personal representative does not correctly follow the law, he or she may be personally liable for the damage caused.

How much does a probate lawyer cost?

California Probate Code section 10810 sets the fee for the attorney representing the estate. The fee is calculated based on a percentage value of the estate, as follows:

(1) Four percent on the first one hundred thousand dollars ($100,000).

(2) Three percent on the next one hundred thousand dollars ($100,000).

(3) Two percent on the next eight hundred thousand dollars ($800,000).

(4) One percent on the next nine million dollars ($9,000,000).

(5) One-half of 1 percent on the next fifteen million dollars ($15,000,000).

Thus, if an estate is valued at $1,000,000 - the fee for the attorney will be $23,000. If an estate is valued at $5,000,000 - the fee for the attorney will be $63,000.

Is a probate proceeding necessary?

Did the Decedent have a trust? 

• Own less than $150,000 worth of assets? 

• Real property valued at less than $50,000? 

• Spouse is the only heir?

If the answer to any of these questions is “yes” - there may be an expedited procedure available to transfer the decedent’s assets to his or her heirs. If the answer is “no,” then a probate will most likely be required.

What is a trust lawyer?

A trust lawyer specializes in trust law which is also governed by the California Probate Code. The Probate Code lays out rules concerning the creation and validity of trusts, the duties, responsibilities, and powers of a trustee, the rights of beneficiaries and third parties, breaches of trust, trust contests, trust accounting requirements, trust litigation, etc.

Do I need a trust lawyer?

If you are a trustee, the Probate Code imposes specific duties and responsibilities which you must follow to properly administer a trust. You have a fiduciary duty to the beneficiaries of the trust, and if you fail to act in their best interests or otherwise fail to adhere to the terms of the trust, you could be personally liable to the beneficiaries for the damages they suffer as a result. If you understand the terms of the trust fully, and the other beneficiaries agree with all actions you plan to take, you may not need an attorney. If, on the other hand, the trust is not entirely clear, or you are not clear about your duties as trustee, or a beneficiary or beneficiaries may be particularly hostile to you, it is strongly recommended that you at least consult with a trust lawyer.

If you are a beneficiary and you have questions concerning the trust - for example: are you concerned that you are not receiving what you are due under the will or trust? Is the trustee or personal representative in breach of the terms of the trust or will? Is there property that should be in the trust that the trustee has not accounted for? Is the trustee using the trust for his or her own personal benefit? Has the trustee improperly sold trust property? If you have answered “yes” to any of these questions, or there is a similar issue with a trustee or personal representative, it is strongly recommended that you speak with a trust or estate attorney as soon as possible.

Do I need a trust lawyer?

Basic estate planning involves making a plan in advance to name who will receive your assets after you die and who will be in charge of carrying out your wishes. Generally, a full estate plan will include a revocable living trust, a will, a financial/durable power of attorney, and a health care directive/power of attorney. These documents will cover any situation you encounter while you are still living but disabled or incapacitated and will dictate what should happen with your assets after you pass away, and who will be in charge in each situation.

What is the benefit of Estate Planning?

Proper estate planning has numerous benefits. Among them:

• You are able to dictate exactly what should happen with your assets after you pass away. If you die “intestate” - i.e. without any estate plan - the California Probate Code will dictate exactly who receives which of your assets. If you have a good friend or charity that is important to you, or one child who has a much greater need for funds than another, you will be unable to make arrangements to fit your wishes. With proper estate planning, however, you can dictate what will happen according to your specific needs and wishes.

• Faster distribution to your heirs. Proper estate planning avoids the time and delays associated with the probate court.

• Minimize costs and fees. Probate court is expensive. In addition to the fees for the attorney and personal representative, the probate court expenses also include filing fees, publication fees, appraisal fees, document certification fees, etc. With proper estate planning you will minimize these fees for your beneficiaries at a very small cost to yourself.

• Privacy. Everything filed in probate court is public record, whereas with proper estate planning you may keep the details of your estate, your assets, your creditors, debts, and liabilities private.

• Minimize tax liability. Your heirs may pay estate tax of up to 40% of the taxable amount of your estate after you pass away. With proper estate planning, these taxes can be minimized and often avoided entirely.

• Peace of mind.

How much does an estate plan cost?

Prices for estate planning can vary widely among attorneys even though the end product is likely very similar. VITTAS LAW charges a competitive rate between $1,000 - $2,000 depending on the specifics of your situation and the complexities of your case.