Probate FAQ

What is Probate?
Probate allows for the transference of a decedent’s property under the guidance and oversight of the Superior Court. In Contra Costa County that court is located in Martinez.
The court has three main objectives which steer the entire probate administration:
  1. To gather and account for all assets of the decedent that are subject to probate administration;
  2. To ensure that all legitimate creditors of the decedent are paid or otherwise satisfied;
  3. To ensure that title to the net estate is distributed to decedent’s beneficiaries or heirs in an effective manner.
With those objectives in mind, the proceedings are public in nature and lengthy in practice.
All probate files and hearings are open to the public, and those files contain every bit of information about the decedent’s estate and who the beneficiaries are and where those beneficiaries live. All hearings are noticed, meaning all interested parties must know about the hearing and have a chance to enter written objections prior to the hearing.
Additionally, creditors are given a four month time period at the beginning of the administration in which to submit claims against the estate. That period, along with the notice time for hearings, generally adds up to a minimum estate period of seven months in Contra Costa County before the final distribution of the estate to beneficiaries. Most estates last much longer.
Probate will be costly to the decedent’s estate. Although filing and certification fees are minor, attorney and executor fees are not. Those fees are based on the gross value of the estate, beginning at 4% for the first $100,000 and decreasing for amounts following.
What are the costs of Probate?
There are filing fees to open the probate with the court, publishing fees for the notice of death, Probate Referee fees to appraise all property and other miscellaneous expenses but the main costs to the estate are the attorney and executor fees which are based on the gross (not net) value of the estate on decedent’s date of death, plus income earned and net gains on the sale of property during the administration of the estate. Below are some selected estates and the fees that are paid to both the executor and the attorney at the end of estate administration. This does not include any extraordinary fees that may be requested by either the executor or the attorney.
Gross Estate Equal Fee for Executor and Attorney
$ 100,000 $ 4,000
$ 200,000 $ 7,000
$ 300,000 $ 9,000
$ 500,000 $13,000
$ 750,000 $18,000
$1,000,000 $23,000
$1,500,000 $28,000
$2,000,000 $33,000
The compensation for acting as Executor or Administrator of an estate, and an equal amount as the fee for the attorney, are fixed by Probate Code sections 10800 and 10810:
  • On the first $100,000 of the estate, 4%, or $ 4,000;
  • On the next $100,000 of the estate, 3%, or $ 3,000;
  • On the next $800,000 of the estate, 2%, or $16,000;
  • On the next $9,000,000 of the estate, 1%;
  • On the next $15,000,000 of the estate, 1/2%;
  • All over $25,000,000 to be determined by the court.
How Can I Avoid Probate?
Certain properties are not subject to probate administration. Generally, it is how title is held to the property that determines whether there will be a probate. Other times it is the value of the property that is determinative.
Property titled with another as joint tenant has a right of survivorship, meaning the last surviving joint tenant gets the property. Similarly, a married couple holding title to property as community property with a right of survivorship will pass title to the surviving spouse without probate. (Be careful, since this title is relatively new and is easily confused with title in community property.) The problem with survivorship title to property is that you cannot pass title to anyone else with your will, and there can be tax implications for appreciating property if held in joint tenancy.
Property held between spouses as community property (without the right of survivorship) can pass to a surviving spouse in an expedited (and inexpensive) proceeding in Superior Court. Basically, the court issues an order confirming title to all property to the surviving spouse. Once again, this type of arrangement does not allow the property to go to any other person but the surviving spouse.
Property titled in the name of a living trust will avoid probate proceedings, and does allow for distributions to any person or charity. Property may even be retained in trust for minor or incompetent persons.
Properties with a beneficial designation, such as life insurance, IRAs or some retirement plans, also avoid probate, as long as you do not name your estate as the beneficiary. However, there may be significant tax consequences depending on who you name as the beneficiary. Again, an estate planning attorney can advise you on the best tax saving strategy for your situation.
The above refers to property that is not subject to probate. If a decedent has property subject to probate but of a total value less than $150,000, there is a procedure that will avoid probate. This is known as the affidavit or declaration procedure, and it allows the beneficiary to provide a sworn statement to the holder of an asset (i.e. a bank, stock manager, etc.) and have title to that property transferred to the beneficiary. Of course, the beneficiary also swears to pay off any creditors of the decedent with the proceeds of that property.