Rasmussen Law Offices

Serving San Diego for over 35 Years

Probate:

The Probate Code is a state law which provides for the transfer of property from a decedent to heirs or beneficiaries upon death. This transfer of property can occur either by intestate succession (to heirs) when the decedent had no Will, or by testate devise (to beneficiaries) when the decedent had a Will.

The terms "Probate” or "Probate proceeding" generally include these two property transfer forms as well as others within the jurisdiction of the Probate Court. In all such cases which involve a death and an estate and an appropriate venue (the three jurisdictional requisites of the Probate Court), the court can effect the transfer of the decedent's estate to heirs or beneficiaries. If there is no estate, then there is no probate.

Now, heirs and beneficiaries do not generally choose Probate proceedings. Rather, Probate proceedings are required of heirs or beneficiaries who cannot obtain the decedent's estate by other transfer means. The probate attorney can review the title of the decedent's estate and the value of the decedent's estate and the decedent's estate plan to determine if probate proceedings are indicated.

Probate Fees - The probate attorney can assist with the transfer of the decedent's estate by means other than probate with fees based on an hourly rate. If probate proceedings are necessary to effect the transfer of the decedent's estate, then fees are based on statute as follows:

    •    4% of first  $100,000.00 ($4,000.00) 
    •    3% of next $100,000.00 ($3,000.00) 
    •    2% of next $800,000.00 ($ Varies ) 

Probate Taxes: - Contrary to popular belief, there is no State Death Tax (inheritance tax). The Federal Death Tax (estate tax) applies only to estates of far more than approximately $5,000,000.00/person. Therefore, no tax is generally due in "middle-class" Probate proceedings, and so the above referenced fees and costs are generally the only Probate expenses.

Probate Facts: - Again, the decedent's property may pass to heirs or beneficiaries outside of Probate if the estate title allows (Joint Tenancy) or the estate value allows (less than $150,000.00), or the estate plan allows (Living Trust), or the estate form allows (beneficiary provisions in contract). Further, the existence or the lack of a Will does not determine the need or the lack of Probate proceedings. In other words, if the form of an estate requires a Probate, then a Will simplifies the process, but the lack of a Will does not preclude the process.

Probate proceedings take at least six (6) or eight (8) months. Probate hearings can usually be avoided. Probate fees could be paid from the estate​