Probate & Trust Administration

What is Probate?

Probate is the court process of winding up your estate when you die. Contrary to popular belief, even if you have a Will, it is likely that your estate will require a probate proceeding. In a probate, the court will determine the validity of your Last Will and Testament, confirm the appointment of the person or institution you have named to administer your estate, oversee the administration to assure that all of your bills are paid and then oversee distribution of the estate to the person or persons you have name as beneficiaries of your estate. The executor or personal representative named in the will is in charge of this process, and probate provides an orderly method for administration of the estate. The executor is held accountable by the probate court. The executor is entitled to a reasonable fee or commission. In California, the probate process is both costly and time consuming. A typical probate will take between six month and one year to complete. Additionally, the attorney handling the probate is entitled to be compensated based not upon the amount or complexity of the work done but by the gross value of the estate.

Should You Avoid Probate?

Many types of assets routinely pass outside of the probate process. These include:

  • life insurance or retirement plan proceeds which pass to a named beneficiary rather than your estate; and
  • real estate or bank or brokerage accounts held in joint names with right of survivorship

As for assets that are titled in the decedent’s name alone, however, these assets will have to be probated. If probate can be avoided, for example by utilizing a living trust, this is usually desirable as it will avoid many of the costs associated with probate and almost always allows the estate to be administered in a much shorter amount of time. The courthouse is a great place to resolve disputes but if there are no disputes, because you have planned appropriately, then staying out of court will be beneficial to your heirs.

 

©2011 Phillip M Flanigan Attorney at Law