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There is no set time in which to probate an asset. However, the courts frown on people dragging their feet. They would prefer that all of the property issues be decided expeditiously. Probate case length typically takes no less than a year and I have seen them remain open for as long as 10 years.
An executor or administrator’s duty is to manage the estate’s assets. The prudent investment rule applies and we must keep the assets separate; no co-mingling them with their own assets. The assets, if they are in accounts or other investments, must be in interest-bearing accounts. The administrator is not allowed to spend any of the money without the permission of the court. There are some exceptions. If they have independent powers, they could spend some money on the roof of the home to be sold, for example. The other major duty is the inventory of the estate property: to marshal the assets, determine the value of the property, and file an inventory or appraisal within four months of letters being issued. Also, filing a change of ownership with the county assessors.
The administrator must notice creditors, sending out a notice to all known creditors within four months of the appointment. If they have received Medi-Cal assistance, then they must notify the Director of Health Services within 90 days to determine if there is any insurance to safeguard the property.
They must keep records, maintaining accounts and preparing them, and then report to the court. If a probate estate takes more than a year, the administrator or executor is required to file a report of what has been going on within the past 12 months; a report and an account. In the end, there would be the final report and account, and a proposed distribution.
The persons who will receive notice of a probate are all of the heirs at law of the decedent, all of the beneficiaries of the decedent, any person named in the will, if there is a will, and the general public through publication.
Probate doesn’t cost a person individually; it’s a cost that is billed against the estate. The initial filing fee is currently $435. Publication runs anywhere from $250 to $600, and that would be just getting the case started. The attorney fees are calculated according to the probate code. The statutory attorney fees are four percent of the first $100,000, three and a half percent of the second $100,000, two percent of the next $800,000 and one percent of the next $9 million. After $10 million, the fee is one-half percent of the next $15 million. Anything above $25 million is what is reasonable as determined by the court. The Attorney may also be awarded extraordinary fees for unanticipated additional work.
There are costs associated with the probate referee, who is required to value the estate properties, an accountant to prepare income tax returns and other costs of administration. There is typically a fee of one tenth of a percent of the asset that the probate referee values. The probate referee also is entitled to bill for their actual costs and mileage. When a probate referee values a real property, it’s a drive-by appraisal. Any time there is a petition filed in court, there is a $435 filing fee. At a minimum, to open and close an estate, you would have two $435 filing fees, the publication fee, and whatever the probate referee will charge, plus attorney fees and administrator fees.
A less expensive alternative to probate is to prepare an effective estate plan, which would eliminate the need for a probate by placing the assets into the trust and setting up beneficiary designations on other assets to transfer at death.
If there is money in a deposit account or held by an institution, that property would likely be turned over to the State Controller’s Office as Unclaimed Property. The Administrator or Executor would apply to have these funds turned over to the estate. If the Estate is exempt from probate as discussed, the heirs would then make the application to have the funds turned over.
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