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Probate
Law Offices of Daniel E. Hanley Over 30 years of legal experience 1091 Lincoln Ave San Jose Probate AttorneyAt the San Jose, California, Law Office of Daniel E. Hanley, we help families manage the probate process in a quick, efficient, and cost-effective manner. Our San Jose probate attorney has more than thirty years of legal experience and has helped hundred of families through this often complicated process. Whether your loved one had a will or not, we can help you understand the administration process and distribute the estate. Contact our San Jose probate attorney today to find out how we can help you. What is Probate? The Probate process is a court procedure involving the administration of a decedent’s estate. Whether a person died with a will (referred to as “testate”) or died without a will (referred to as “intestate”), probate is a necessary process unless the decedent makes other arrangements, such as a LIVING TRUST. The Probate process is initiated by filing a Petition to Probate in the Superior Court. Heirs are notified and the Court appoints an executor (if a will) or an administrator (if no will) to distribute the Estate. Executors and administrators will be referred to as “legal representative” in the following. The legal representative must publish a legal notice in a local newspaper to advise creditors of the Probate proceeding. The legal representative has a legal obligation to notify known creditors of the proceeding. Generally, creditors have four months to file claims. In the meantime, the legal representative must collect all of the decedent’s assets and file an inventory with the court. The legal representative has a legal obligation to keep and protect the assets during the course of the Probate process. Once the creditor claims are received, they must be resolved either by acceptance and payment of the claim if the claim is not disputed or through legal proceedings if the claim is disputed. After the claims have been resolved, the inventory of the Estate filed, and the statutory time period passes (usually four months), the Estate can be settled and distributed upon court approval. The process takes anywhere from six months to a year (and longer if there is litigation). How Living Trusts Avoid this Lengthy & Costly Process How are the assets distributed in Probate? If the decedent left a will, then the assets are distributed in accordance with the will. If the decedent did not leave a will, then the assets are distributed according to statute. The distribution of assets if the decedent did not have a will depends on the nature of his/her property. For example, if the property the decedent owned is characterized as community property, all community property goes to the surviving spouse. If, instead, the property is determined to be separate property, the property is divided by the following formula: If, in addition to the surviving spouse, there is
If there is no surviving spouse, then assets are distributed in the following priority:
How much does Probate cost? Probate attorney fees are set by law and subject to court order. Probate fees are based on the gross value of the probate estate. For example, if the probate estate is $750,000.00, the probate fee is $18,000.00. The fee is computed as follows:
The executor’s fee is computed the same way for another $18,000.00. The total fees are $36,000.00. If the Probate estate is real property and subject to a loan, the probate attorney and the executor are entitled to the same $36,000.00. This is because the probate fees are calculated with respect to fair market value and not the Estate’s equity. In Estates with a lot of debt, the fees may exceed the equity in the property. This is why people create Living Trusts. In essence, by using a Living Trust you are making a gift to your loved ones by freeing them from the expense and hassle of Probate. How do I avoid Probate? The following arrangements avoid the Probate process:
*Provided that beneficiary is named in the plan Contact Us If you have questions about probate, please do not hesitate to contact our San Jose estate probate attorney. Call today or contact us via e-mail by filling out the form on the Contact Us page and someone from our office will be in touch. Located in San Jose, California, estate planning and real estate attorney Daniel E. Hanley serves Santa Clara County, San Mateo County, and Alameda County, including the cities of Campbell, Los Gatos, Saratoga, Cupertino, Sunnyvale, Santa Clara, Los Altos, Palo Alto, Menlo Park, Redwood City, Fremont, Morgan Hill, and Gilroy. Law Offices of Daniel E. Hanley 1091 Lincoln Ave The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Copyright © 2008Law Offices of Daniel E. Hanley. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement. |  |            |