Expert Orange County Probate Lawyer

As Orange County probate lawyers, we are often asked: ‘what is probate‘? When a California resident dies, the decedent’s estate goes into what is known as “probate.” Probate is a legal term to describe the Probate court’s supervision of the administration of the decedent’s estate. As you’ll read below, probate can be complex and time consuming.

John Wong is an Orange County probate attorney who is a California Bar Certified Specialist in Estate Planning, Trusts and Probate. He was an integral part of the team that represented several well-known estates, including Executors of the Estate of Michael Jackson and Co-Conservator of the Conservatorship Estate of Britney Spears.

Tiffany Chiu handles a range of clients from singles building their financial portfolio, to high net worth couples and business owners strategizing the transfer of wealth, and helping their heirs to navigate trust and probate administration.

How Can Modern Wealth Law Help with Probate?

Modern Wealth Law helps Administrators and Executors navigate the entire Probate court process. First, we help determine if probate is necessary or if there is some other proceeding we can use to minimize the cost and length of the probate process. Second, if probate is required, we assist you with being appointed. Third, we ensure that you are compliant with the Court rules during the entire administration process. Finally, we assist you with the distribution of the probate assets and your discharge as an Administrator or Executor.

If you have questions regarding the probate administration process, or have general questions about probate call us today at (949) 371-5003 or fill out a contact form to schedule a consultation regarding your matter.

Modern Wealth Law is located at 2600 Michelson Dr Suite 950, Irvine, CA 92612 (open in Google Maps), near the 405 & 55 interchange just a few blocks from John Wayne Airport. Modern Wealth Law has been helping people in Orange County and throughout Southern California with Probate matters for over 15 years.

Yelp Review:
“A law firm where the attorney actually calls you! Sometimes it feels like it is impossible to speak to the actual attorney. Not with John. I called Modern Wealth Law and the receptionist told me he was in a meeting. John called me back about 2 hours later and walked me through the probate process. He was able to explain the timeline, the cost and most of the steps before we even met. It’s taken a year, but we’re finally done! If you need help with a probate, don’t hesitate to call John.”
Review by Rickey G.

What is Probate?

Probate stamp Probate is the court process of distributing a decedent’s assets (the “Estate”) to the rightful beneficiaries. The probate process is necessary when some or all of the decedent’s assets are not distributed through some other vehicle.

During this process, the Probate Court will appoint a person to be in charge of the decedent’s estate. This person may be called the executor or administrator depending on whether the decedent died testate or intestate as discussed below. The Probate Court will also require notice to the decedent’s family members, heirs and creditors of the decedent’s estate.

What Assets Avoid Probate?

Not every person that passes away requires a probate. A probate is not necessary for the following types of assets:

Accounts with a named beneficiary. These accounts are often referred to as pay-on-death (POD) or transfer-on-death (TOD) accounts. Financial institutions simply require a death certificate and identification to transfer these types of accounts to the named beneficiaries.
Assets held in joint tenancy with right of survivorship. When the owner of a joint account passes away, the surviving joint owners continue to own the account by right of survivorship. A death certificate is needed to remove the deceased owner from the account. There are certain circumstances where the surviving joint owner(s) do not receive the account. This is most common when the decedent added a joint owner on the account for convenience purposes only. e.g. bill paying.
Assets held in Trust. The best way to avoid probate is to hold assets in Trust. Assets held in Trust are distributed pursuant to the terms of the Trust by the Trustee.
Assets intended to be held in Trust. Often times a decedent had a Trust but certain assets were not held in the Trust. In certain circumstances, these assets can be transferred to the Trust after the decedent’s death.
Assets with a value less than $184,500. If the value of the assets (other than real estate) is less than $184,500, the assets can pass to the heirs without a probate using a summary proceeding or affidavits.

Testate vs. Intestate

Testate means the decedent died with a valid will. Intestate means the decedent died without a valid will. If a decedent dies with a valid will, the decedent’s estate will be distributed pursuant to the terms of the will. If a decedent dies without a valid will, the decedent’s estate will be distributed pursuant to the law of intestacy. The distribution of the decedent’s assets pursuant to the laws of intestacy depend on the make-up of the decedent’s family and the character of the decedent’s assets. The assets may be distributed to the spouse, children, parents, siblings, more remote family members, or a combination of those family members.

The person named in the decedent’s will that is appointed is called the “Executor.” If there is no will, the person in charge of the decedent’s estate is called the “Administrator.” There are other more obscure names for special situations.

Length of Probate

Even for the most simple of estates, a California Probate can take anywhere from a year to two years to complete. During this time, your family may be left with no assets for their support, and there may not be available assets for the upkeep or maintenance of your other assets (e.g. mortgages on your home or other real estate). Your family may be forced to sell certain property at a discounted rate to avoid foreclosure.

Cost of Probate in California

As you can imagine, Probate Courts charge extremely high fees. Generally, the filing fees, cost of bond, publication and appraisal fees will exceed $3,000. When you add the cost of Executor fees and probate attorney’s fees which are determined by the value of the estate, the cost is substantially higher.

Knowing this, many Orange County, California residents look for ways to avoid probate costs and the lengthy probate procedure.

The Probate Process

Assuming that the decedent’s assets do not fall into one of the five categories above, the assets will require a probate in order to transfer them to the beneficiaries. The California probate process is time consuming and filled with additional delays for the inexperienced personal representative without counsel.

This page is not intended to be a step-by-step process to administering a probate. We would need an entire book for that. Instead, it is designed to give you a big picture understanding of how the typical probate process works.

Petition for Probate

In order to initiate a probate, you must file a petition for probate. The petition will ask the Court to appoint you or someone else as the Personal Representative of the estate. The Court determines the appropriate Personal Representative by the terms of the decedent’s Will, or if none, based upon California Probate Code’s order of priority. e.g. spouse, children, grandchildren, parents, then siblings, etc.

The petition also gives the Court some information regarding the assets of the estate, the surviving family members, the decedent’s Will, and whether a bond is required. Once the petition is filed, the Court will set a hearing to determine whether your petition should be approved. These hearings are typically set 45 to 60 days after the petition is filed. Notice and publication of the hearing will be required. At the hearing, if the Court approves your petition, the Court will issue a Minute Order. You are still required to submit a proposed order for the Court’s signature. However, the Order does not actually give you any power.

Letters

In order for the Court ordered Personal Representative to have any power, he or she needs Letters of Administration (or Letters Testamentary). It is only once Letters are issued that the Personal Representative has the authority to marshal assets, sell property or otherwise act on behalf of the estate. The Court will not issue Letters until you have a signed Order appointing you as Personal Representative and you post bond, or the Court otherwise waives bond. It can take a month or more to get Letters issued after the hearing.

Marshalling Assets and Paying Debts

Once you are appointed as the Personal Representative, you have the general duty to collect all assets of the Estate, pay any legitimate bills, and to sell any assets necessary to prepare the Estate to be distributed and closed. As you marshal assets, you will prepare an inventory of the Estate assets. These assets are then appraised by you or a probate referee and filed with the Court.

If there are any debts of the Estate, those creditors may file a creditor’s claim. Creditor’s claims will have to be paid or otherwise resolved prior to closing probate. Creditors have 4 months from the date of your appointment as Personal Representative to file a creditor’s claim.

Accounting and Petition for Distribution

Where Personal Representatives find themselves in trouble is when they fail to properly account for their actions. As Personal Representative, you are required to keep track of all Estate transactions. Before closing a probate and distributing the assets, you will first have to account for all Estate assets. Typically, a petition for approval of your accounting and distributing the assets is done together. The petition will report to the Court all of the steps you have taken during the probate process, the expenses paid, income earned, and how you intend to divide and distribute the estate assets. The Orange County Probate Court is currently (2024) setting these petitions for hearing eight to ten months after the petition is filed.

If the Court approves your accounting and petition for distribution, you will have to submit another Order for the Court’s signature. Once you have the Order, you can distribute the assets to the beneficiaries of the Estate. Once all distributions are made and receipts are received, you will file another petition to be discharged as Personal Representative and the probate will be closed.

Other Issues in Probate

There are many other issues that must be addressed in a probate. If these issues are not properly addressed, they will lead to delay, or even worse, liability to the Personal Representative.

The sale of real estate or other items must be carefully handled and notice must be given depending upon the powers given to the Personal Representative.
Bond is another issue that must be addressed. Sometimes bond can be waived and save the Estate thousands of dollars a year. Other times, bond can be reduced to almost nothing.
Creditor claims can also be a huge issue in a probate. Determining if and when to pay a creditor should be analyzed to determine the pros and cons of various responses.

Contact an Orange County Probate Lawyer

Probate is complicated, but the Orange County probate attorneys at Modern Wealth Law can help. Often times there are ways to avoid probate, either before or after the death of a loved one. Give us a call at (949) 371-5003 to schedule an initial consultation, or if you prefer, fill out a contact form or email us at info@modernwealthlaw.com. Our probate attorneys serve clients in Irvine, Costa Mesa, Mission Viejo, Tustin, Corona Del Mar, Rancho Santa Margarita, Huntington Beach, Newport Beach and throughout Orange County, California.

Probate Articles and Information

Why Avoid Probate?
California Probate: An Overview
Probate Shortcuts in California
Estates, Executors and Probate Court
Wills, Estates and Probate
CNN Money – 101 Estate Planning