Question 1

What is probate?

Accepted Answer

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.

Question 2

My loved one had a Will. Why do I need a probate?

Accepted Answer

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.

Question 3

How do I know if I'm the Executor or Representative of the estate?

Accepted Answer

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.

Question 4

How do I know who is entitled to my loved one's assets?

Accepted Answer

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. Is there a joint owner on the home or account?; Is a beneficiary on file with bank accounts, investments, or life insurance?; Are beneficiaries named in a Will or Living Trust?; Did the deceased person have a spouse or children?

Question 5

How long can I expect the probate process to take?

Accepted Answer

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.

Question 6

What are the costs associated with probate?

Accepted Answer

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 estate3% from $100,000 — $200,0002% from $200,000 — $1,000,0001% from $1,000,000 — $10,000,0000.5% 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.

Question 7

My loved one had a Living Trust. Why am I being told I need a probate?

Accepted Answer

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.

Question 8

What are the definitions to the commonly used terms during the probate process?

Accepted Answer

Here are definitions for some of the most commonly used terms during the probate process:

Question 9

What exactly is a living trust and how does it work?

Accepted Answer

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 and San Diego Counties, this typically takes 4-12 weeks to complete after death, compared to 12-18 months for probate.

Question 10

How much does a living trust cost in California?

Accepted Answer

Living trust costs in California can vary based on your county but typically range from:

Question 11

Do I still need a will if I have a living trust?

Accepted Answer

Yes, you should have a "pour-over will" alongside your living trust. This will:

Question 12

How does a living trust help avoid probate?

Accepted Answer

Living trusts avoid probate because:

Question 13

How long does it take to set up a living trust?

Accepted Answer

Typical timeline:

Question 14

I'm named in my loved one's Durable Power of Attorney and now they are incapacitated. What do I do?

Accepted Answer

Start by having the document reviewed to confirm how it's structured — some Durable Powers of Attorney require one or two doctors to sign a declaration confirming your loved one is incapacitated before the document becomes effective. Once that requirement (if any) is satisfied, you can provide the Durable Power of Attorney to banks, investment companies, and other institutions where you need to act on your loved one's behalf. Our attorneys can review the document with you and help you understand exactly what's required to activate your authority.

Question 15

What is the difference between a Durable Power of Attorney and an Advance Health Care Directive?

Accepted Answer

A Durable Power of Attorney allows you to act on your loved one's behalf for financial and legal matters — things like accessing accounts, paying bills, and signing contracts. An Advance Health Care Directive, on the other hand, allows someone to make medical decisions on your loved one's behalf, directs their life support wishes, and often includes HIPAA language that allows access to medical information and records. Most complete estate plans include both documents, since each covers a different area of authority.

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