Orange County Probate FAQs
At Flanigan Law Group, we understand that the probate court process can be intimidating. This set of probate FAQs was designed to provide general information and should not be construed as legal advice that pertains to any specific case. Always consult directly with a California probate attorney before making any decisions.
If you need personalized estate planning advice or help navigating probate court proceedings, contact the experienced Irvine probate attorneys at Flanigan Law Group to request a consultation.
What Is Probate Court?
Probate court is a unique type of court that specializes in the legal handling of both the debts of a person who has died as well as their final wishes. Probate court distributes the property and possessions of the deceased including finances and other holdings, real estate, vehicles, and more. Probate court is also responsible for the disposition of any will the decedent drafted before their passing. The essential role of probate court is for a judge to ensure that all creditors are paid from the estate, and beneficiaries receive property and other assets granted by the trust or will.
Other names for probate court are used in different areas, including Orphan’s Court, Chancery Court, and Surrogate’s Court.
Does My Will Need to Go Through Probate Court?
Each will must be filed with the county of the decedent’s residence in the state of California. The probate court will determine whether an extensive probate process is necessary and is responsible for validating the will. If the decedent owned any property that was left unsettled by either a will or a trust, probate court will be required to disperse those properties, finances, or other assets. Assets obtained outside of probate court and without specific arrangements by the decedent are not considered legally acquired.
Do I Need an Administrator or an Executor?
In general, when you draft a will, you will name a trusted individual as executor of your estate. The executor is approved by the probate court and charged with ensuring the accurate disbursement of your property according to the terms of the will. If you do not name an executor, or if your executor is unable or unwilling to perform this duty, the court will appoint an administrator. Similarly, if you die without a will, the court will appoint an administrator.
What If I Die Without a Will?
If you have not set forth a will or any other estate plan before your death, California intestacy statutes dictate that a close friend or family member may petition probate court to serve as the administrator. Through the probate court process, the administrator will assist in distributing your remaining assets according to court guidelines.
What Is an Estate Plan?
Estate planning is the important process of creating a plan for your property and belongings after you have inevitably passed on. You can designate beneficiaries to whom you plan to leave your property, establish a final will and testament, begin a revocable or irrevocable trust, and more. Estate planning also helps you determine what should occur if you become incapacitated or otherwise unable manage the disposition of your property, including advanced directives, powers of attorney, and conservatorships.
What Does the Probate Court Consider an Estate?
For the purposes of estate planning and probate court, your estate consists of all your property, including your home or other real estate, your financial accounts and investments, your car, furniture, antiques, jewelry, and all other possessions. In addition, your estate includes any outstanding debts, and it is the responsibility of the probate court to ensure both assets and debts are settled after your death.
What Is the Process for Creating an Estate Plan?
The beginning of the estate planning process includes gathering data and records regarding each element of your estate. Every aspect of your estate should be listed for the benefit of you and your attorney so you can begin making decisions regarding their distribution. The next step often involves drafting a will. Writing a will helps you determine who you want to inherit each piece of your property, as well as designate a guardian for any dependent children. Similarly, it may be valuable to consider the creation of a trust. A living trust allows your friends and family members to avoid the need to appear in probate court.
What Is an Estate Litigation and Probate Lawyer?
A probate lawyer works with beneficiaries and administrators to accurately distribute assets in probate court. An estate litigation lawyer assists with litigating any dispute regarding a will or other estate document between family members or other beneficiaries. Estate litigation lawyers can handle accusations regarding financial abuse of an elder, wrongdoing or undue influence over the decedent, or forgery or other manipulations of the intentions of the deceased or incapacitated. Further, topics that may be addressed through the avenue of estate litigation could pertain to embezzlement of funds, incompetence, or other suspicious activity by the executor or another individual with fiduciary duty. Often, skilled estate planning lawyers handle both probate and estate litigation cases.
Do I Need a Lawyer to Go to Probate Court?
While you are not required to appoint a lawyer to navigate the probate process, estate litigation and probate lawyers are well versed in estate and probate law. These attorneys can ensure each estate is resolved as the decedent intended and can handle any unjust or suspicious aspects of property disposition as they occur. The death or incapacitation of a loved one is an incredibly emotional time for family members, and an estate litigation lawyer can focus on the integrity of your loved one’s legacy while you grieve.
What Fees Can I Expect in Probate Court?
Court fees are mandatory and dictated by state law. These typically range from a couple of hundred dollars to just over a thousand, but only for complex estates which require multiple probate hearings. An estate litigation lawyer can prepare the forms required before probate court begins and reduce the likelihood of encountering multiple court dates. However, you will encounter several other mandatory fee types during probate court:
- Executor fees are also mandatory and dictated by state laws, typically less than 5% per $100.000 of the property subject to probate.
- Attorney’s fees are also included in the process. In California, probate attorneys may charge a percentage of the estate, a flat fee, or an hourly fee, depending on your agreement.
- Accounting fees are determined according to the value of assets owned and the wealth of the overall estate.
- Appraisals of real estate, private property, and business ventures are required for probate, and such appraisals are typically priced between a few hundred to a few thousand dollars depending on the complexity of the estate.
- Bond fees are necessary for the executor to pay for and post a bond as determined by the probate judge before they can be appointed. Fees may be required even when the estate has minor beneficiaries. It is common for the estate to pay for these fees.
For any other questions regarding the probate process or estate litigation, contact Flanigan Law Group to receive a personalized assessment of your case.