What Is Probate?
If the deceased person left a Will (or died without any estate plan), their estate must go through Probate. Probate is a court-supervised process that validates the Will, formally appoints an Executor, and oversees the settling of the estate. In California, it can be a lengthy, public, and costly process.
Think of it as the legal way to transfer ownership of property from someone who has died to the people who should receive it. Not all assets go through probate: only those solely owned by the deceased person without designated beneficiaries.
California Probate Statutory Fees
In California, probate statutory fees for both the attorney and the executor are set by California Probate Code Sections 10800 and 10810. Fees are calculated as a percentage of the gross estate value (without deduction of mortgages):
| Rate | Portion of the gross estate |
|---|---|
| 4% | on the first $100,000 |
| 3% | on the next $100,000 |
| 2% | on the next $800,000 |
| 1% | on the next $900,000 |
| 0.5% | on the next $15,000,000 |
Because the executor and the attorney each receive this percentage, the total statutory fee effectively doubles.
Aside from statutory fees, there are additional court costs such as the filing fee and the Probate Referee appraisal fee of 0.1% on non-cash assets.
Example: a home worth $1,000,000 (regardless of the mortgage balance) generates a statutory fee of $23,000 for the attorney and another $23,000 for the executor; $46,000 before court costs. A funded revocable living trust avoids this entirely.
What Does the Probate Process Involve?
In California, the process typically takes between 9 and 18 months depending on the county, and involves the following steps:
- Filing the Probate Petition in the Superior Court of the county where the deceased person lived.
- Appointment of the Personal Representative by the Court. The court issues formal “Letters of Administration” granting the authority to act on behalf of the estate.
- Notifying Heirs and Creditors. The estate administrator (or representative) must formally notify all heirs, beneficiaries, and known creditors.
- Inventory and Appraisal of Assets.
- Paying Debts and Taxes. The estate administrator must settle all valid claims and prepare final tax returns for the estate.
- Distributing Assets and Closing the Estate.
Special Considerations and Complexities Probating Assets of Non-US Citizens
California probate for non-US citizens brings its own set of complexities.
Must nominate a U.S. resident as the administrator of the California estate
Under California Probate Code Section 8402, individuals living outside of the United States generally cannot act as an executor or administrator of a California estate. This means that either the decedent’s family or the foreign executor must legally nominate a U.S. resident (ideally residing in California) to serve as the administrator of the local estate.
Must authenticate and translate foreign official documents
Official documents such as a will or death certificate from a foreign country must be apostilled or legalized according to the local consular process. A will drafted abroad must include certified, authenticated translations.
Must file an estate tax return (Form 706-NA) if U.S. property exceeds the $60,000 threshold
Administrators or executors of a non-US citizen decedent who holds U.S. property must file an estate tax return within 9 months after the decedent’s death. U.S. property includes U.S. real estate, tangible personal property, U.S. corporate stocks, and U.S. brokerage accounts.
Trust Administration
If your loved one created a living trust, their estate avoids the probate process. However, the successor trustee must still perform trust administration. While this occurs outside of court, the trustee holds a fiduciary duty to notify beneficiaries, value assets, file tax returns, and distribute the trust property according to its terms.
At Foros Law, we guide executors, administrators, and trustees step by step through their legal duties. Whether it is a straightforward trust administration or a complex probate involving foreign heirs and assets, we ensure the estate is settled efficiently and the fiduciary is protected from personal liability.