Daniel E. Hanley
Attorney at Law for Probate

San Jose, California, Estate Planning Attorney at Law since 1974 and licensed Real Estate Broker and Private Lender since 1980. In addition to estate planning law, I specialize in elder law, real estate transaction law and small business matters. Call me now for a free phone consultation.

At the San Jose, California, Law Office of Daniel E. Hanley, we help families manage the probate process in a quick, efficient, and cost-effective manner. Our San Jose probate attorney has more than thirty years of legal experience and has helped hundreds of families through this often complicated process.

Whether your loved one had a will or not, we can help you understand the administration process and distribute the estate. Contact our San Jose probate attorney today to find out how we can help you.

We represent Executors, Trustee(s) and/or Trust beneficiaries in the process of the Administration of Probate Estates or Trusts (non-probate).

Our services are designed to protect the interests of our client(s) and to carry out the intentions of the deceased loved ones.

The Probate process is a court procedure involving the administration of a decedent's estate. Whether a person died with a will (referred to as "testate") or died without a will (referred to as "intestate"), probate is a necessary process unless the decedent makes other arrangements, such as a LIVING TRUST.

The Probate process is initiated by filing a Petition to Probate in the Superior Court. Heirs are notified and the Court appoints an executor (if a will) or an administrator (if no will) to distribute the Estate. Executors and administrators will be referred to as "legal representative" in the following.

The legal representative must publish a legal notice in a local newspaper to advise creditors of the Probate proceeding. The legal representative has a legal obligation to notify known creditors of the proceeding.

Generally, creditors have four months to file claims. In the meantime, the legal representative must collect all of the decedent's assets and file an inventory with the court. The legal representative has a legal obligation to keep and protect the assets during the course of the Probate process.

Once the creditor claims are received, they must be resolved either by acceptance and payment of the claim if the claim is not disputed or through legal proceedings if the claim is disputed. After the claims have been resolved, the inventory of the Estate filed, and the statutory time period passes (usually four months), the Estate can be settled and distributed upon court approval. The process takes anywhere from six months to a year (and longer if there is litigation).

How are the assets distributed in Probate?

If the decedent left a will, then the assets are distributed in accordance with the will. If the decedent did not leave a will, then the assets are distributed according to statute. The distribution of assets if the decedent did not have a will depends on the nature of his/her property. For example, if the property the decedent owned is characterized as community property, all community property goes to the surviving spouse.

If, instead, the property is determined to be separate property, the property is divided by the following formula:

If, in addition to the surviving spouse, there is:

One child: 1/2 to surviving spouse and 1/2 to child.

More than one child: 1/3 to surviving spouse and 2/3 to children.

No children: 1/2 to surviving spouse and 1/2 to parents.

If there is no surviving spouse, then assets are distributed in the following priority:

To children of decedent, if none,

To parents, if none survive,

To children of parents, if none,

To grandparents, if none,

To children of pre-deceased spouse.

Probate attorney fees are set by law and subject to court order. Probate fees are based on the gross value of the probate estate. For example, if the probate estate is $750,000.00, the probate fee is $18,000.00. The fee is computed as follows:

The executor's fee is computed the same way for another $18,000.00. The total fees are $36,000.00.

If the Probate estate is real property and subject to a loan, the probate attorney and the executor are entitled to the same $36,000.00. This is because the probate fees are calculated with respect to fair market value and not the Estate's equity. In Estates with a lot of debt, the fees may exceed the equity in the property.

This is why people create Living Trusts. In essence, by using a Living Trust you are making a gift to your loved ones by freeing them from the expense and hassle of Probate.

The following arrangements avoid the Probate process:

Living Trust

Life Insurance*

Annuity*

401K plans*

IRAs*

Profit and Pension Plans*

Retirement Plans*

Joint Tenancy Property

Estates with total value under $100,000.

*Provided that beneficiary is named in the plan.

In addition to probate and trusts, our firm also offers a full range of legal, real estate and loan related services including bankruptcy, foreclosure, elder law, estate planning, real estate exchanges, real estate loans, real estate transactions and small business matters.

If you have questions about probate, please do not hesitate to contact our San Jose estate probate attorney today. Call us now for a free phone consultation at 408-293-0344 or contact us via e-mail by filling out the form on the Contacts page and a representative from our office will reply immediately.

More information: Contact Us, Elder Law, Estate Planning, Homestead Law, Inheriting Property, Pet Trusts, Protecting Your Assets, Real Estate Transactions, Selling The Family Home, Daniel E. Hanley Biography