What is Probate:
Probate is a public court process that ensures a deceased person’s assets are distributed according to their wishes, or according to the laws of the state if the person did not have a valid will or trust.
Why would assets go through Probate:
Because they have not been transferred to a revocable trust or because there is no living adult transfer on death beneficiary for that asset.
Why De Fonte Law PC does not like Probate:
It is a public process. It does not protect beneficiaries from creeps, creditors, or predators. It does not provide a surviving spouse with tax planning or asset planning ability. Minor children cannot legally inherit, leaving a judge to decide what happens to their assets.
Won’t my assets automatically pass to my spouse?
It depends. If you have separate property there is a statutory formula that dictates how much would pass to a surviving spouse and how much must be distributed to other people, such as your children or your parents. If you own a business with other people, they cannot be forced into business with your spouse.
What are Probate Fees?
Probate fees are awarded to the executor and to the attorney based on a percentage of the total value of the probate estate. The statutory fee that sets the minimum amount an executor and the attorney will receive is 4% of the first $100,000 of the estate, 3% of the next $100,000, 2% of the next $800,000, 1% of the next $9 million, and 0.5% of the next $15 million. There are also other costs, which can add up to thousands of dollars, related to probate in California.
How do I use this calculator?
For real estate owners, enter the fair market value of all the real estate that you own in the United States.
If you do not own real estate, enter the fair market value (not your equity stake) of all your tangible items, businesses, intellectual property, and any asset you own for which you cannot name a transfer on death beneficiary (such as cryptocurrency and some types of RSU’s and related types of assets).
A bit more about assets included in Probate:
In California, assets subject to probate are those that are solely owned by the deceased person and do not have a designated beneficiary or joint owner. Examples of assets subject to probate in California include:
- Real estate and other property held solely in the deceased person’s name
- Bank accounts, investments, and brokerage accounts held solely in the deceased person’s name
- Business interests held solely in the deceased person’s name
- Intellectual property rights, such as patents, copyrights, and trademarks, held solely in the deceased person’s name
- Personal property, such as jewelry, artwork, and furniture, held solely in the deceased person’s name
Assets that have a designated beneficiary or joint owner are typically not subject to probate. These include:
- Life insurance policies with a designated beneficiary
- Retirement accounts with a designated beneficiary
- Bank accounts, investments, and brokerage accounts with a designated beneficiary or held jointly with rights of survivorship
- Real estate held jointly with rights of survivorship