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Probate is the legal proceedings which winds up a person’s legal and financial affairs after death. The proceedings related to probate in California is conducted in the superior court of the county in which the decedent lived. The process can take nine months to several years.
The necessity of probate.
The origin of probate dates back to medieval times. A person who is alive can transfer a property to a relative with the help of a document called deed, but a person who is no more cannot sign a deed and gift a property after death .The probate process has been put in place to pave way for a smooth transition of the property of the deceased to the heirs once the creditors are settled with their claims. It’s actually the probate court who steps into the shoes of the decedent and transfers the property to the deserving heirs.
Happenings during a Probate
A person nominated in the will as an executor has to file a petition with the superior court asking the court of law to appoint him/her as the executor. If a will doesn’t exist the probate code submits a list of people who have the priority to petition to become the administrator. The will has to be filed along with the petition, notices are sent to heirs and relatives to inform them the date of hearing. In case of objections to the petition, or if the validity of the will is challenged the hearing will be used to solve the issues. The dispute at times are- the validity of the will is questioned or some other person than the original petitioner is chosen to administer the estate etc. but in most cases there is no objection and the petition is granted.
The executor makes a record of the estate’s assets, find creditors, pays bills, file tax returns, and manages the assets of the estate. when the duties of the executor are completed one more petition is filed with the court requesting for the distribution of assets to the hires. If this petition gets a green signal, the estate can be distributed and then file the tax returns.
Time Duration
From the date of petition to the opening of a probate takes nine moths to one year- if the estate is under one million dollars. The reasons are, IN California It takes six to eight weeks from filing the petition for an executor or administrator to take charge, once appointed he has to notify the creditors and the creditors have four months to file the claim. The petition for distribution at the end of the probate also needs six to eight weeks before an actual order is signed.
The expenditure involved in a probate
There is a set norm of fee structure for a probate lawyer under California probate code, Section 10810 Higher fees will be ordered by the court if the proceedings are complex and meticulous. The fee is four percent of the first $100,000 of the estate, three percent of the next $100,000,two percent of the next $800,000, one percent of the next $9000,000 and varies in percentage as the amount goes up. The court will determine the fee for an amount which is greater than $25,000,000.
California statutory fees used to reimburse the Attorneys and executors in probate cases for different sizes of estates