Probate is the court process for assessing who is entitled to a deceased person’s assets, paying his or her debts, and settling his or her financial affairs.
Good question! It is a common misconception that a Last Will and Testament keeps your family out of probate. When a person passes away, their Will has to be filed with the court and the probate process begins.
A Living Trust is often the best way to avoid probate. If you haven’t created a Living Trust as part of your personal estate plan, ask our attorneys how to ensure that your heirs will avoid probate if you and your spouse pass away.
If there’s a Will, the representative is the Executor named in the Will, or the Successor Executor if the primary Executor is deceased or does not wish to take on his or her duties.
If there is no Will, the law gives a priority list for who should be the administrator. The surviving spouse or legal domestic partner is at the top of the list, with children as the second category, grandchildren as the third, and so on.
Many determining factors play in to this question.
Your attorney can help you determine the answers to these questions and who is entitled to each asset.
The average probate in California takes 18 months to complete; however, hiring an experienced attorney can help you shorten this process and gain legal access to your loved one’s assets quickly – often within weeks of meeting with your attorney.
The idea of legal fees and court costs is often overwhelming. It’s important to know that all of the costs are paid out of your loved one’s assets – not by your personal funds.
Initial costs include the court’s filing fees, publication, and certified copy costs, which generally require an upfront investment of approximately $1,000.00. These upfront costs will be reimbursed to you at the end of the probate process.
Other costs include the appraisal fee charged by the probate referee and the cost of a bond, which both can range drastically depending on the value of the estate.
Any attorney in California may only charge the statutory fees that are set by the California Probate Code. These fees are based on the gross value of the estate and paid out of the estate’s assets at the end of the probate process:
4% of the first $100,000 of the estate
3% from $100,000 - $200,000
2% from $200,000 - $1,000,000
1% from $1,000,000 - $10,000,000
0.5% from $10,000,000+
The Executor of the estate also receives the “statutory fees” set above as payment for fulfilling the job of Executor. In addition, the Executor will be reimbursed for any funds spent on their loved one’s behalf.
If an asset is not properly transferred to a Living Trust during a person’s lifetime, a probate may be required. Sometimes, in this case, a shortened version of probate is available, known as a “Summary Probate.” Your attorney can advise you as to whether this applies to you and help you through this process as well.
Probate: The court process for assessing who is entitled to a deceased person’s assets, paying his or her debts, and settling his or her financial affairs.
Administrator (or Personal Representative): The person appointed by the court to manage the estate of the person who dies without a Will.
Executor: The person named in a Will and appointed by the court to manage an estate.
Heir: A person who inherits a deceased person’s estate when there is no Will.
Beneficiary: A person who is named in a Will to inherit the deceased person’s estate.
Intestate: When someone passes away without a Will.
Real Property: Buildings and land.
Personal Property: Things like cash, stocks, jewelry, personal items, and vehicles.
Living Trust: A contract created during the lifetime of a person to distribute money or property to another person or organization, generally created to avoid the probate process.
A living trust is a legal arrangement where you transfer your assets into a trust during your lifetime. You maintain control as trustee while alive, and upon death or incapacity, your chosen successor trustee manages and distributes assets according to your wishes. In San Bernardino County, this typically takes 4-12 weeks to complete after death, compared to 12-18 months for probate.
Living trust costs in California can vary based on your county but typically range from:
• Basic trust package: $2,000-$4,000
• Complex estate planning: $4,000-$7,000
• Annual maintenance: Minimal to none
• Amendment costs: $300-$500 per change
These costs are often recovered through probate savings.
Yes, you should have a "pour-over will" alongside your living trust. This will:
• Captures any assets not in your trust
• Names guardians for minor children
• Provides backup protection for forgotten assets
• Directs any remaining assets to your trust
Living trusts avoid probate because:
• Assets are technically owned by the trust
• No court intervention needed for distribution
• Successor trustee has immediate authority after the creator’s death
• Property transfers happen privately
Typical timeline:
• Initial consultation: 1-2 hours
• Document preparation: 1-2 weeks
• Review and signing: 1 hour
• Funding process: 2-4 weeks
Total process usually takes 3-6 weeks.
