The Probate Process

Probate is a court procedure whereby an estate is administered under the supervision of the Superior Court in accordance with the rules in the Probate Code and the Court. Probate is normally conducted in the County where the decedent resided or where he/she owned real property.

Why Avoid Probate?

The primary drawbacks to the formal court administration of an estate are the cost, the delay preceding distribution to beneficiaries, and the loss of privacy of the decedent’s (and surviving spouse’s) assets, finances, and directions for the disposition of the estate.

Cost is a function of the expense of filing the probate case, publishing notice of the administration, and subsequent filings to present reports, accounts, the request for distribution, etc. The legal cost consists of the fee provided by California law and the court’s award of additional compensation for work outside of the normal probate activities. The statutory fee is calculated on the value of the estate, not the amount of work expended to do the job. This can lead to unearned fees being paid to the lawyer and the estate representative.

Delay is a function of the probate process itself, which requires advance notice of hearings, a creditor claim period of approximately 4 months, and the delays caused by any contests, protracted settlement of tax matters, etc.

Your privacy is not protected because the probate court file is a public record. Therefore, everything you disclose in the probate process—your assets, debts, etc.—are subject to public inspection. As a .matter of fact, few probate cases are scrutinized by strangers. However, the risk that will occur is ever present

With proper coaching, your estate representative should be able to handle most of the tasks in a probate, thereby saving some of the cost of these procedures. I encourage my clients to use this type of informed self-help wherever possible.