Probate is the legal process by which property owned by someone who has died is transferred to his or her heirs if there was no Trust. In other words, probate is simply determining who gets what assets when someone passes away, either by looking at the will, or if no will exists, then the laws of intestacy–laws that determine the hierarchy of heirs.

During the probate process a court case will be opened and will remain open until the probate is closed, usually 9 to 12 months. The attorney fees are a percentage of the gross value of the estate as follows:

  • 4% of 1st
  • 3% of next
  • 2% of next
  • 1% of next
  • ½% of next
  • $ 100,000.00
  • $ 100,000.00
  • $ 800,000.00
  • $ 9,000,000.00
  • $ 5,000,000.00

For all estates above $25,000,000.00, the fees will be a reasonable amount to be determined by the Court.

Probate law is a complex field and, practically speaking, requires an attorney’s guidance.

Probate Litigation

Usually a probate case is opened and closed without any contentious litigation. However, if someone contests or challenges a last will and testament, the case will last significantly longer and will involve more complex issues. A last will and testament challenge will also frequently result in a trial.

This type of conflict typically occurs when a beneficiary was disinherited in a will or is unhappy with the distribution given to him in the will. Litigation is also common when there is a second marriage and children from the first marriage disapprove of any money or assets passing to the new spouse.

The probate attorneys at Burt + Clerc are very experienced with litigation of contested wills under California law. We know how to present evidence and analyze issues regarding competency, undue influence, fraud and intestate succession. Our years of experience with contested will issues can help protect the interests of fiduciaries and beneficiaries while fostering open and honest communication between all parties.

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