By ccieemeritus on the Bogleheads forum, Guest Writer
[AUTHOR'S NOTE: Disclaimer: I am not a lawyer.]
I recently finished self-representing and acting as the administrator for a probate in California. The death was unexpected, and there had been no estate planning. Despite the probate going perfectly, it still took eight months.
- Nobody contested anything. We had bond waivers, account waivers, and full cooperation from all parties.
- Just routine creditors. No drama.
- Solvent estate.
- There were no real estate transactions.
- Every motion was approved at the first hearing (the probate examiner posted a few deficiencies two days before each hearing, but I was able to file corrections the day before each hearing).
Why did it take eight months?
- One month between death and filing the petition for probate (no death certificate was necessary, so this could have happened sooner).
- One and a half months between the petition for probate and the first hearing date. The notice to all parties and the newspaper publication occurred in this period.
- Four months between the first hearing and the end of creditor notice period, at which point I submitted the final report and the petition for final distribution. Notice to all creditors occurred during this period.
- One and a half months between submitting the petition for final distribution and the second hearing. Another notice to all parties occurred in this period.
To people inexperienced with probate, this seems like an excessively long time.
The Probate Process
During the hearings, I saw several other families with uncorrected deficiencies (they were missing required information) or errors in their submissions. This required rescheduling to another hearing with a 1.5- to 2.5-month delay. Some of these people were self-represented. Some had lawyers who (apparently) didn't specialize in probate. In my court's case, the probate examiner reviewed the filings and posted deficiencies two business days before each hearing. I monitored the webpage where the probate examiner posted deficiencies and made sure to correct my deficiencies by filing an additional “statement of information” the day after the deficiencies were posted. This resulted in both of my petitions being approved in the first hearing opportunity.
Notifications are particularly important. Every party must be notified one month before the hearing. The petition for probate must be published in the correct newspaper based on the deceased’s hometown. You must diligently search for creditors, list them, and notify them. I searched for creditors by pulling a credit report, checking their bank and credit card history, and monitoring the decedent’s email. Failure to submit proof of proper notifications will result in a rescheduled hearing.
I'm tempted to tell you to avoid probate in California with beneficiary designations and revocable trusts. But you also need to give the executor sufficient liquidity to handle debts and taxes. I'm not a lawyer, so I'll just let you know probate is going to take eight months even if done perfectly. Understand that some other states have “easy” probate procedures, and some (such as California) have difficult probate procedures.
There is a “simplified probate” procedure for “small” estates. My experience above was for the full probate procedure. In my case, one additional beneficiary designation on a brokerage account would have allowed the remainder of the estate to pass using the simplified probate procedure.
If you hire a lawyer, get one with probate experience. Only self-represent if you can handle months of extra delays due to an error. The probate examiner (at least in my county) is very unforgiving. But the fact that they publish deficiencies before the hearing is helpful. Your county may not publish deficiencies before the hearing.
I wish the probate examiner in my county would have examined the filings for deficiencies promptly after submission. Instead, they wait until two days before the hearing and then publish them on a webpage that not everyone is aware of. I saw multiple heartbroken families arrive at the hearing unaware they had deficiencies and suffer multi-month delays as a result. In my case, I corrected my deficiencies with a supplemental court filing the day before the hearing, avoiding a two-month delay.
When filing paperwork with the court clerk, people would expect them to be helpful. The court clerks deal with probate paperwork all the time. They know the court’s procedures. But they are not allowed to help you. They are not lawyers. They are not your lawyer. The last thing a judge wants to hear is “but the court clerk advised me to . . . ” If you need help, you need to hire your own lawyer.
Even in the court hearing, I saw the judge not help a self-representing family. The judge referred the family to the probate examiner notes on the webpage, told them to fix it, and rescheduled the hearing to the next available date . . . three months in the future.
More information here:
We Redid All of Our Estate Planning: Here’s How We Made Sure to Find Emotional Peace
The Importance of Revocable Living Trusts
How Much Does Probate Cost?
That brings me to probate costs in California. Here is the “maximum” fee schedule for both the executor/administrator and the lawyer in California:
- Four percent on the first $100,000.
- Three percent on the next $100,000.
- Two percent on the next $800,000.
- One percent on the next $9 million.
- One-half of 1% on the next $15 million.
- For all amounts above $25 million, a reasonable amount is to be determined by the court.
There are also two $435 filing fees, plus a 0.1% appraisal fee (even stocks and bonds need to be “appraised”). The newspaper legal notice costs $163.
A sample probate with an estate consisting entirely of a $1 million house would have a “maximum” cost of $23,000 for the administrator/executor fees, $23,000 for the legal fees, $1,000 for the appraisal fee, and $870 for filing fees. This does not include realtor fees. Hiring a lawyer to set up estate documents, including a revocable trust and retitling the house into the trust, might cost $4,000.
Administrator or legal fees above those rates require court approval. In theory, you can negotiate lower rates. Lawyers may be reluctant to accept a lower rate because a good “standard rate” for routine probate proceedings compensates them for contested cases, which require extra work.
In my case with a $270,000 probate, by self-representing (without fee) and acting as estate administrator (executor) while waiving compensation, I saved the estate $16,800. But each error in filling out probate petitions could have resulted in 1-3 months of rehearing delays. A family in financial distress may be eager to avoid legal fees, but delays due to legal mistakes can be heartbreaking for a family already grieving the loss of a family member. Some legal errors could result in irrevocable financial loss (disclaiming an inheritance is a good example).
Self-representing also took considerable time. In my (retired) case, it became a bit of a hobby. My proximity to the county courthouse minimized travel time. If you live far from the county courthouse or have a full-time job, those may be good reasons to hire legal representation.
Based on my experience, I encourage California residents to avoid probate with proper estate planning. In the event you must pursue probate, hopefully my experience will help you decide whether to hire a lawyer or risk self-representation.
Have more questions about estate planning or protecting your assets? Hire a WCI-vetted professional to help you sort it out.
Have you ever had to deal with probate? How long did it take? Was it a smooth ride or a choppy process? Did you hire a lawyer or self-represent?
My mom’s and MIL’s estates were small enough to avoid probate. Our clerks were kindly helpful but gave different advice in each case! Joint accounts and designated beneficiary made this possible. Still had “the other shoe” dropping over a year out in both cases.
Mom having no will and both their nursing homes’ delayed refunds plus overpaid (to estate) error we’re still repaying on one of those (thankfully for money we received, not already distributed to others!) caused that. Needed letter from probate court to get Mom’s last tax refund and officially her money went through me to her verbally declared heir; if she’d left more I’d’ve had to file a gift tax form just to pass it on! Split disbursements over two years to avoid.
My brother in MD is still addressing our cousin’s estate 2 years out- rental properties, home, heirs across the country, let alone unexpected prolonged death and documents well hidden. Think she did the medical proxy naming him at her last colonoscopy admission. He had to loan the estate money (with delayed official access to her accounts) to keep her properties’ mortgages paid. If single consider some joint account access – a divorced friend has two kids on two separate accounts for local bills and out of town real estate after nearly defaulting on her bills during an ICU stay.
For now spouse and I cover each other, if we die together kids will have a hell of a time though POD designations cover most aside from house. As we age / are widowed will consider trust or kids joint on some accounts.
I may be misinterpreting but why don’t you have a revocable trust now?
Good advice on adding at least one (VERY trustworthy) younger person to some banking accounts, as banks don’t always accept a durable financial POA. (Ask me how I know.) For the same reason, I strongly suggest that if you go withy a trust-based estate plan, at least one person from the younger generation be named as one of the trustees as well. My parents had such a trust, and neither I or my brother were named as trustees, which caused me a huge headache when I needed to sell my father’s house for him to pay for care in a senior living center. My mother was long-dead and my dad had severe mobility problems which precluded him acting as his own agent in the sale, so I ended up having to have my attorney draw up paperwork to have my father resign as trustee and appointing me his successor trustee before I could open up a bank account in the name of the trust and proceed with the home sale.
CA’s executor fees are considerably lower than VA’s which are: 5% of the first $400,000, 4% of the next $300,000, 3% of the next $300,000, and 2% of assets over $1 million. There are also administrative fees, court costs, legal fees, accounting fees, publication, appraisal, and liquidation fees which may apply. Localities may add their own fees.
VA uses a unique system of probate. Commissioners of Accounts are appointed positions by the Circuit Court for handling probate. Their decisions are final unless appealed within 15 days of their decision. That’s not a long time for a novice to file an appeal, even getting an attorney takes longer.
An uncontested estate is fairly simple in VA and Commissioners of Accounts are usually very helpful. But cases can drag on as George Washington found out when he married Martha Custis. Known as the Dunbar Lawsuit, it dragged on from 1711 until the American Revolution. (Her children had the middle name Parke as an attempt to protect their interests in the estate.)
This seems like the perfect use of AI.
Ensure you’re using the appropriate model.
Ask it to play the role of an expert estate lawyer in your state. List all assets, family members, details of the estate and ask for a step-by-step guide on what to do.
As you complete each step or gain additional info or issues, add that to a new prompt.
Model matters!!!!