When a person dies, their assets are distributed among the living. The process of overseeing that distribution – and legitimizing the documents detailing the decedent’s wishes and intentions – is called the probate process. Probate is overseen in a probate court, by a probate judge, in the decedent’s county of residence.
Key to any probate process is the court-appointed executor, usually the most able next of kin, who is given the necessary powers to assemble and distribute the estate, while satisfying any debtors and creditors with legitimate claims to the estate and communicating with the estate’s respective beneficiaries.
This process can be anything from a cakewalk to a serious logistic challenge. In the state of California, it is the job of the California State Controller’s Office to appoint certain qualified individuals, called probate referees, to perform a low-cost appraisal of the assets within an estate. This appraisal is crucial and required for the resolution of an estate, and the end of the probate process.
A California probate referee is responsible for appraising the assets within an estate – usually property, certain valuables, vehicles, stocks, furniture, and so on. Probate referees receive state-specific training to become official appraisers, but are usually already experienced as attorneys, certified public accountants, or professional property appraisers.
A probate referee’s job is to coordinate with an estate’s executor to properly appraise the value of all non-monetary assets within an estate and fill out Form DE-160 truthfully and impartially, to be filed with the probate court. The point of having a state-appointed and qualified probate referee is to provide the probate court with an accurate total value of any given estate.
Any appraisals made by a probate referee are made by a professional with extensive experience in property valuation. There are both work experience and educational requirements, as well as a course and written exam required for all California probate referees.
Alongside valuating the non-monetary assets of an estate, a probate referee can also be tasked with valuating the assets of an estate outside of probate, such as the contents of a trust. The same fees generally apply.
Probate referees are generally paid not by hours worked, but by a fraction of the estate’s total value. In California, a probate referee’s compensation is equal to 0.1 percent of the total value of the estate assets listed under Attachment 2 of the Form DE-160.
For small estates, probate referees have a minimum fee of $75. For much larger estates, probate referees have a maximum fee of $10,000.
All California probate referees are appointed by the Office of the California State Controller. As such, the easiest and safest way to locate a California probate referee on your own is through the Controller’s official website.
Some counties automatically appoint a probate referee to your probate case in Form DE-140, or the Order of Probate. If none was appointed, you will be asked to complete a request to appoint a probate referee through a separate county-specific form, or Local Form. For example, these are Form PRO-001 in Los Angeles County and Form PR-5 in San Mateo County.
There is also a California Probate Referee Association, which provides a databank of contact information for multiple qualified probate referees and provides an extensive amount of public knowledge on the topics of probates and inheritance in California. Probate referees in California may be qualified to work on estates in multiple different counties.
The probate process is the means by which the local government can clear an estate for distribution and resolution. The larger the estate, the more complex the probate process. Taking proper steps to prepare for probate is an important element of any estate plan, through a well-structured will, and optionally, the use of one or more living trusts.
Without a plan, an estate is at mercy of the state’s intestate laws, including intestate succession, and the automatic division and distribution of an estate among the next of kin.
In California, all community property passes to the surviving spouse, alongside half or one third of all separate property (depending on the number of surviving children). The rest is distributed between the surviving children, or next of kin (parents, siblings, nieces, or nephews).
Most estates cannot avoid probate, although they can go to great lengths to minimize it. For example, an estate of a total qualified value of $166,250 or less can file a small estate affidavit to greatly expedite the probate process. Without this, probate can take anywhere from a few months to over a year. A probate referee’s official appraisal is needed to file a small estate affidavit (as part of a series of attachments to the document).
Aside from minimizing probate, you can also see to it that certain assets are not included in the probate process. Distributing assets to a beneficiary immediately upon death (through a beneficiary designation, a transfer-on-death clause, or a payable-on-death clause) allows these assets to skip probate. Including assets in a trust makes these the property of the trust, thereby skipping probate. Life insurance or retirement account pay-outs have designated beneficiaries and are not included in a probatable estate.
These are just a few examples. Certain types of probate do not require the help of a probate referee, as well. Cash-only estates may not require a probate referee because there are no non-cash assets to appraise.
Even if you distribute nearly everything you own through trusts, beneficiary designations, and other means, there may still be some assets left over that were not rolled into other estate planning documents before you passed away. These will go through probate, even if it is an expedited probate process.
Probate is not always something that needs to be avoided. Some estates can file for a quicker probate process and skip most of the hassle. Others can greatly simplify probate by structuring their estate with trusts and other tools, to avoid things like ancillary/multi-state probate, and complications from foreign assets. It is important to discuss your circumstances with a professional before you choose a course of action for your estate.
Founded in 1975 by L. Rob Werner and serving California for over 48 years, our dedicated attorneys are available for clients, friends, and family members to receive the legal help they need and deserve. You can trust in our experience and reputation to help navigate you through your unique legal matters.
Whether you need help creating a living trust or navigating probate, our living trust law firm's compassionate team of estate planning lawyers and probate lawyers are here to help you and ready to answer your questions.
Our goal is to make your case as easy as possible for you. Hiring a lawyer can be a daunting task, but it doesn’t have to be. From the moment you contact our firm, through the final resolution of your case, our goal is to make the process easy and understandable. We cannot change the fact that probate is a long and complicated process, but through our Werner Law Firm Difference, we strive to go out of our way to keep you informed of your case through every step of the way. We are constantly refining our processes and procedures for a more streamlined and calm client experience. Our goal is to have you feel like a burden was lifted from your shoulders, and that we made the whole process an easy one
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