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Probate is a court-supervised process where a Will is proved. If there is no Will, a similar process takes place in an effort to see that assets and liabilities are addressed in an orderly manner.
In general, probates are expensive and time-consuming. This is why so many establish probate avoidance trusts.
Probates can be expensive because lawyer’s fees and executor’s commissions are based on a statutory fee schedule. The fees themselves are based on a percentage of the value of the assets…not the net value of the assets. In California where we have high real estate values, the fees can be astronomical.
In a probate, typically, the executor named in the will starts the probate process after death. The executor files a petition in court seeking official appointment as executor. The executor then takes charge of the assets, pays debts and, after receiving court approval, distributes the rest of the estate to the beneficiaries. Probate proceedings generally take longer than one year.
For those that worry that their wishes may not be carried out, the probate court is accustomed to resolving disputes about the distribution of assets through a process with defined rules. In addition, the probate court reviews the executor’s handling of each estate, which can help protect the beneficiaries’ interests. While there are benefits to probates, most of my clients create trusts to avoid the costs and delays associated with probate court.