When is Probate Required in California?

San Diego Estate Planning Lawyer Describes Probate Law

Video Transcript:

Vinny Casiano:

I don't know too many people that actually... That are not lawyers practicing in this area of probate and trust, that can do this and get it done efficiently and properly without getting themselves in all sorts of trouble.

Molly Hendrickson:

What is probate and why is it important for you to know about? We're gonna find out right now on this episode of Ask the Lawyer. My guest is California Attorney Vincent Casiano. I wanna remind you that if you wanna ask Vinny questions about your situation, it's easy, go to askthelawyers.com, click the button up top that says Ask a Lawyer, or you can always call the phone number you'll see at the top of your screen. Vinny, thanks for joining us today.

Vinny Casiano: 

It's great to be here. Thanks again.

Molly Hendrickson:

First things first, probate administration is a process many people face during their lifetimes, whether it's a parent or spouse who passed away, and the estate needs to go through the probate process. So let's start at the beginning. What is probate and what is the probate process in California?

Vinny Casiano: 

Well, the probate in California is extremely complicated. It's burdensome. It's not private, it's expensive. So the first thing I'll say about probate is, you wanna avoid it. The next thing I'll tell you about probate is sometimes it's actually good to go through the probate process, probate is where a person has to go to the court and become appointed as the personal representative of the loved one's estate... Normally, it's a loved one, it's usually somebody you know, it's usually a parent or a spouse or a brother or a sister, and the court has to approve their appointment that authorizes them to then deal with the person that's died's property and assets and pay their bills and creditors, so the process, as I said, it's quite lengthy, just getting somebody appointed takes in San Diego County right now, they're setting probate appointment hearings out about two and a half months from the date you file that initial petition.

Molly Hendrickson: 

So is probate always required in California, and is there any kind of a time limit to complete probate?

Vinny Casiano: 

Well, certainly, there are times that probates are required, and there are times that a probate may be voluntary. Most of the time, if it's voluntary, you're only bringing it for specific reasons, but to do a more simple explanation here, if you have more than $166,250 in what we call probatable assets. Then you have to be appointed by the court and you have to go through this formal process, so if you have less than that, then you don't have to go through it, but there may be times that you want to to get rid of all the creditor claims or other things, or sometimes if there's a dispute over what's going on of who's supposed to get what, who should be in charge, then sometimes you have to bring a probate proceeding so that the court will determine once and for all who is in charge and what they need to do.

Molly Hendrickson:

And is this only for people who die with a will, what if the person who died didn't have a will? 

Vinny Casiano: 

Right. So I use the term probatable assets, and that's to a degree, a term of art, but there are ways you can pass property to somebody where it's not a probatable asset, it's not subject to probate, is what I mean by that. So if you have an account and you have another person's name on it, so that they're a co-owner, and a lot of spouses do this, or people do this with houses, they hold it as husband and wife as joint tenants, when one spouse dies, or one owner of the property or the account dies, the other one automatically by operation of law, succeeds to that property, there's still some paperwork you have to do in order to get that property in the person that survives' name, but certainly that would be an asset that's not subject to probate regardless of its value. Also, there are things called pay-on-death beneficiary designations, where you can say, Hey, when I die, this is where this money goes, so there a lot of accounts will do this, you'll have a bank account, you'll have a brokerage account even, and it'll say, Hey, when I die, this is the person that gets this, the problem with utilizing those particular ways of passing property when you die.

Vinny Casiano: 

A lot of times, we'll end up frustrating the objectives of the person that owns that account because maybe the person dies before you or maybe that person doesn't have capacity when you die, maybe they're in need of public benefits, there are many reasons why that wouldn't work right, and that's why most attorneys in California, at least, we always recommend to hold property in trust, 'cause if you have property in trust, that avoids probate as well. 

Molly Hendrickson: 

So what assets are subject to probate in California? 

Vinny Casiano: 

So any asset in which, it's not held in trust, it's not co-owned by somebody where it automatically passes to another person... Okay, or doesn't have a pay on death beneficiary designation on it, so if it's titled or it's owned is another way of putting it in the name of the person that died without any pay-on-death beneficiary designations, without anybody else being on there, then it is an asset subject to probate, and if the gross value of all the assets that the person that dies owns then is over $166,250, then you have to go through probate, or you're not going to be able to take control of that asset and taking control of that asset means that you have to go through the full probate process, which includes doing a ton of notices to everybody that may have an interest in the state, it means making sure that you've paid all the creditors, it means making sure that the taxes are paid, it means that any means going to the court and giving reports after report after report, including a final report before you can take any of that money and utilize it for the beneficiaries.

Molly Hendrickson:

It sounds like a lot of work. So can, if you're not a lawyer, can you probate an estate, and are estate representatives paid?

Vinny Casiano: 

Two questions then, you do not legally, you do not need a lawyer to probate a state, you can do it on your own. I don't know too many people that actually... That are not lawyers practicing in this area of probate and trust that can do this and get it done efficiently and properly without getting themselves in all sorts of trouble. Most of the probate hearings that I attend... And almost everything's done via Zoom these days. The judge will have a person that is trying to probate an estate without an attorney, and inevitably that judge will say, I think you may want to consider talking to an attorney about this because you've now got it wrong three or four times, and I am not allowed to as the judge, tell you how to do this, I can't give you legal advice on how to do this. Right. And so a lot of people, even when they try to do it on their own, at first, will stop, and I'll tell you... At this point, in San Diego County alone, I think I have over 20 probate ongoing right now, and of that, there are three clients I have that are attorneys that practice in different areas whose parents have passed away, who have come to me and said, Vinny, you take care of this.

Vinny Casiano: 

Alright, I don't wanna try to learn a whole another area of law, but fraudulent slip there: earn. Is a personal representative entitled to money for the work they do as the personal representative? If you have a will, you're called an executor, if you don't have a will you call then administrator, they're both considered personal representatives and yes. The fees that an attorney earns and the fees that the personal representative earns is right in our statute, it's right in our probate code, it's based on the gross value of the estate with 4% of the first $100,000, 3% on the next $100,000, 2% on the next $100,000 and 1% of the next... Up to so many millions of dollars. Right, so I can be... It can get quite expensive. However, when somebody realizes the work that needs to be done in order to probate a state, a lot of times, it's not like you just push a button on your computer and you sign a couple of papers and then you get all these thousands of dollars, there's nothing further from the truth. Very time-consuming.

Molly Hendrickson:

Yeah, the fact that you have three lawyers who are your clients who don't wanna learn the process, that tells you how complicated it can be. So when might someone need a lawyer in such a situation rather than trying to navigate the system themselves?

Vinny Casiano: 

Well, now as I get several phone calls a day, quite frankly, with people talking about someone's died, what do I do? And while I will consult with people and give them advice if they wanna hire me to just consult with them, most people that try, that think they can just ask me a few questions, get some answers, and then they'll be able to do it on their own, usually come to the conclusion that they need to hire me for full representation because it can take me longer to try to explain to somebody how to do something and all the different variations there can be in a particular situation. Right, and that's my job as the attorney, you know, I've gone through so many of these things that I know I've dealt with so many different situations that I have a pretty good idea on how to deal with different things. However, I'll tell you, Molly, the more I practice, the more I realize I don't know. But what I do know is how to find out the answer to questions that I'm not sure of.

Molly Hendrickson: 

Yeah, they're paying a lot for peace of mind too, which can be priceless. Vinny, thank you for taking the time to talk to us today. 

Vinny Casiano: 

No problem. I appreciate the time to share what I know.

Molly Hendrickson: 

And that's gonna do it for this episode of Ask the Lawyer. My guest has been lawyer Vincent Casiano I wanna remind you if you'd like to ask Vinny questions about your situation go to askthelawyers.com click the button at the top of the page that says Ask the Lawyer and it will walk you through the very simple process. Thanks for watching, I'm Molly Hendrickson for Ask The Lawyers.

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