Vega & Overton’s probate clients can rely upon our experience and familiarity with the applicable rules to ensure that the administration of their family’s estates runs smoothly and expediently.  Below is a brief synopsis of the probate process, which addresses many of the frequently asked questions regarding probate. 

What is Probate?

Probate is a court-supervised procedure which is necessary to transfer the assets of a deceased person to the beneficiaries of their will, or to their heirs at law if they died intestate (without a will).

How does the Probate process begin?

The probate process begins with the filing of a petition in the Superior Court, usually in the county where the decedent resided.  The purpose of the petition is to nominate the person who will work with the probate lawyer overseeing the administration of the estate.  If the decedent died with a will, this person is the executor.  If the decedent died without a will, then the legal title of the person overseeing the probate is the estate administrator.

The petition also seeks to have the will admitted into probate. 

Once the petition is filed, the Superior Court clerk sets a hearing date.  The lawyer for the estate then sends copies of the petition and notice of the hearing date to all potential beneficiaries and heirs.  If a party objects to a particular person serving as executor or administrator, or if party wants to challenge the validity of the will, they can file a formal objection which will be considered at the time of the court hearing.

What happens to the deceased person’s debts?

Once the executor or administrator is appointed by the court, and the will is admitted to probate, the creditors’ claim phase follows.  During this phase, the estate representative (the executor or administrator) must gather and take inventory of all assets of the decedent’s estate, and determine the extent of the decedent’s debts at the time of death.  Notice is sent to all known creditors who then must make formal claims for payment of their claimed debt to be considered.  Once all the debts are paid, the taxes are prepared and paid, the remaining assets may then be gathered for final distribution to the beneficiaries.

How does the Probate process end?

The probate ends with a petition requesting the Superior Court to approve the proposed distribution to the beneficiaries, and payment of fees to the lawyer and estate representative.

How much does Probate cost?

Probate attorney fees are set by law and are determined as a percentage of the probate estate.  Unless the decedent specifies some adequate form of compensation for the estate representative, he or she will receive the same compensation as the estate lawyer.  California Probate Code sections 10800 and 10810 sets forth the fee schedule as follows:

These fees constitute the minimum amount the lawyer for the estate representative shall receive by law.  These fees can increase if the administration of the estate requires the lawyer to oversee the sale of property, the handling of a lawsuit or any other matter which the court considers above and beyond the administrative legal duties of the estate.