Will vs. No Will?  Either way, the Court will supervise distribution of the Estate.



      Probate is the court supervision of the transfer of legal title of personal and/or real property from the estate of the person who has died (the "Decedent") to his or her relatives, heirs, or beneficiaries.  It typically occurs both when there is a will, and when there is no will.  While a Trust is designed to avoid probate, a probate may still be necessary if estate assets are not held by the Trust.  A "pour-over" will is usually prepared with the Trust, to avoid intestate succession.


     If an estate has a value of $150,000 or greater which is not held by a Trust, it requires Probate, whether or not a will exists.  If there is a valid will, distribution will be made according to the terms of the will.  If there is no will, distribution will be made according to the directives of the Probate Code.  (This is called "Intestate Succession" and distributions will be made to surviving spouses and children, or to lineal descendants and ancestors, or to other relatives based on the degree of their relationship to the decedent.)


      In general, all steps in the administration of the estate will be directed toward three goals: collection and management of assets, payment of debts and taxes, and distribution of the balance of the assets as provided in the will.

       While it is the attorney's job to take care of preparing all legal documents, conducting all legal filings, making all court appearances, and in general moving the probate toward a conclusion; it is the executor's job to make sure all assets are found, a list of creditors is made, and that proper disbursements are eventually made.

      If you end up as executor, you are limited in the duties you can conduct without court approval.  It is thus important to communicate with your attorney before doing anything related to the decedent's property or creditors.  If appropriate we will ask the court to grant you authority to administer the estate under the Independent Administration of Estates Act.  The authority, if granted, will enable you to take certain actions in administrating the estate without court approval by simply giving notice of your proposed actions to persons having an interest in the estate.  We will provide you with further guidance on this "notice of proposed action" as the administration of the estate progresses.  We recommend, however, that no actions be taken without conferring with us.


     The probate process is full of standardized forms and other hand drafted legal pleadings that need to be filed with the court and mailed out to various interested parties.  From time to time, throughout the process, documents are submitted to the probate court and reviewed by court representatives or the probate Judge.  If all materials are in order as required under the California Probate Code and local court rules, the court order will be prepared and submitted to the judge for signature without the need for a personal appearance by myself as attorney or you as the representative.  If any document is missing or requires additional information to support the petition, the court clerk will notify our office before the hearing to enable us to submit the necessary information in advance.  In most circumstances, this will eliminate the need for a personal appearance by us or by you, until the final hearing.


      Our goal is to have all documents pass through the Court the first time, without any delay or need to provide additional information to the Court.  My attention to detail allows me to be successful in my probate practice.  My clients benefit from my attention to detail.  However, each estate is different - some small estates can be very complex, while some very large estates are simple and straightforward to probate.

      It is my responsibility as your attorney to see that all the steps in the administration of the estate are taken, including the preparation of all necessary documents.  I communicate with my clients (the Administrator or Executor) about various aspects of administration of the estate, and I am always available for telephone calls from my clients with questions.


      In the ordinary probate, you can expect that it will take somewhere between 8 to 10 months from the time the Petition for Probate is filed, until Distribution takes place.  In some cases, that time can be less.  In a few cases, particularly when estate real property needs to be sold, the time can be longer.


      Attorney fees and Executor's commission for "ordinary services" are set according to the Probate Code.  The fee and commission are based on the value of the Estate accounted for.  Fees and commissions are paid from the estate, prior to distribution to the beneficiaries.  The formula for "ordinary services" is as follows:


  • 4% of the first $100,000

  • 3% of the next $100,000

  • 2% of the next $800,000

  • 1% of the next $9,000,000

  • 1/2% of the next $15,000,000

  • The Court determines the amount of fee and commission above $25,000,000


      As Executor, you are entitled to further allowances as the Court may consider just and reasonable for extraordinary services, such as sales or mortgages of real or personal property; contested or litigated claims against the estate; preparation of the estate, income, sales, or other tax returns, or adjustment, litigation, or payment of any of those taxes; litigation relating to property of the estate; carrying on the decedent's business under court order; and other litigation or special services as necessary.  The Attorney fee is also adjusted, depending on the nature and extent of extraordinary services he performs.  Again, the Court determines the amount of fees and commissions for extraordinary services.


      You can expect the costs of probate (filing fees, publication of notice, appraiser's fees) to be $1,500 to $2,000.  Those costs are paid by the estate.


      Probate can be an unpleasant experience for a family who coping with the loss of a family member. Unfortunately, it can not always be avoided. The process is timely (a minimum of six months from the start of the court process to distribution of assets) and costly, but is required by California law for most estates.

      When a will or trust is challenged in probate court, a decedent's last wishes can, unfortunately, result in a lawsuit.  We have 25 years of litigation experience, and have achieved many favorable and successful results for our litigation clients.  Should a will contest arise during the administration of a probate estate, we are fully qualified to conduct the prosecution or defense of that action.


        For additional information, or to schedule a confidential consultation, contact us, or call us at 707-251-3979.  Our office is open Monday through Friday, from 8 am until 5 pm, and we are available by appointment in the evenings and on weekends.  Our 1st Floor office at the corner of Coombs and Pearl is ramped and handicapped accessible.  We are across the street from free public parking, and on the diagonal from the Kohl's Store in Downtown Napa.