Settling an estate without a will is very common. As an estate increases in value and complexity, the process tends to take longer. Here’s a guide for families and executors/administrators.
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What does it mean to “settle an estate”?
When a person passes away, their assets must be distributed to their family, heirs, or beneficiaries according to the person’s will or trust. If they don’t have a will or trust, the state probate code, as enforced by the county probate court, will dictate how the assets should be distributed – i.e. how the estate should be “settled.” Settling an estate includes the following steps:
- Get appointed as administrator or personal representative of the estate
- Identify, record and gather all the decedent’s assets
- Pay the decedent’s outstanding debts and taxes
- Distribute the remaining assets to family, heirs or beneficiaries
- Terminate or close the estate
How do I settle an estate?
If you are the administrator of an intestate estate (an estate without a will) or an executor of the estate (an estate with a will), you can settle the estate yourself by following the probate code (if no will) or decedent’s directives contained in will (if there is a will), while going through the probate process as prescribed by the state probate code as administered in the decedent’s county probate court.
If you are the trustee of the decedent’s trust, you mostly likely will be able to administer or settle the trust without court intervention, as long as you follow the decedent’s directives as set forth in the trust.
Regardless of whether you are the administrator of an intestate estate (no will), executor of a will, or trustee of a trust, a probate attorney is a vital resource to ensure the administrator is completely properly, timely and while avoiding unnecessary costs and delay.
How do you settle an estate without a will?
If there is no will and you want to administer your loved one’s estate, you should hire a probate lawyer to help you navigate the California probate code and the county probate court processes. Here are the general steps:
- Get a copy of the decedent’s death certificate
- File a Petition for Probate at the decedent’s county probate court (ex., Los Angeles Superior Court – Probate Division)
- Attend your Probate Hearing
- Once your Petition for Probate is granted, obtain letters of administration authorizing you to act on behalf of the estate;
- Identify, record and gather all the decedent’s assets
- Pay the decedent’s outstanding debts and taxes
- Account to the court and seek an order for final distribution
- As per the court order, pay yourself as Administrator of the Estate and your counsel
- Distribute remaining assets to family, heirs, and beneficiaries, per the court order
- Close the estate
Is it more difficult to settle an estate without a will?
Generally, it can be more straightforward to settle an estate without a will, because the California state probate code is unequivocating about how assets are to be distributed. However, when there is no will to dictate how specific assets should be distributed, some extra steps may be required. For example, if the decedent owned real estate property and is survived by multiple children who don’t want to share ownership of the property, then the property likely will need to be sold and the proceeds shared amongst heirs, as prescribed by probate code.
How long does it take to settle an estate by myself?
If you’re settling an estate by yourself for the first time, and there is no will, it can take as few as 12 but likely as many 36 months to settle the estate, depending on the size and complexity of the estate, its assets, creditors, etc. Smaller estates may be settled faster. As the value of the estate increases, the time frame will vary, based on any number of factors, including:
- Multiple real estate properties
- Business interests
- High-value, personal assets
- Surviving spouses
- Surviving ex-spouses
- Surviving children, step-children, and adopted children
- Extensive debts
- Taxes owed
- Creditor claims
Can I settle an estate FASTER with a probate lawyer?
The reality is yes, if you’re working with an experienced probate lawyer, the average time to settle an estate is about 9 to 24 months, depending on the size of the estate. Some smaller estates can be settled faster.
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Can you settle an estate without probate?
If the decedent created a trust and funded all the assets into the trust, then probate can be avoided. Or, if the value of the estate is under $150,000 and the estate does not own real property like a house or condo, then probate can be avoided through the use of a Small Estate Affidavit.
How long does an executor have to settle an estate?
It depends. The courts try to help move cases along. Probate is no exception. That being said, the courts are not there to and judges will not provide legal advice. If you are an administrator or executor who is having problems, or if you are a beneficiary or heir of an estate that is stuck, contact counsel. We have successfully “unstuck” many, many probates, wrapped up administrations, and got beneficiaries and heirs their inheritance sooner.
How long should I keep records after an estate is settled?
Keep the settled estate papers for at least 7 years, after the estate is settled.
What are the average legal fees for settling an estate?
If you’re settling an estate by yourself, there are no attorney fees, only administrator fees, which generally are set by statute. Costs too generally are standardized and quite minimal. Plus, as the executor you eventually should be able to reimburse yourself for any costs you pay out of pocket from the estate assets as approved by the court. It is highly recommended that, as an executor, you set up an Estate Account funded with the estate assets, which you may be able to use to pay ongoing probate costs and fees. Here are a few costs you should expect to pay:
- Petition for Probate Fee: $300-450
- Probate Court Documentation Fee: $50-100
- Estate Account Setup: $0-250
- Closing Estate: $300-500
What does a lawyer get paid for settling an estate?
Probate lawyers are paid by the estate, so they cost you, individually, nothing out of pocket. Plus, ordinary probate lawyer fees are standardized by statute based on the value of the estate. It’s a flat fee, and additional fees generally are rare. Probate lawyer costs generally are the same as what the Executor of Estate is entitled to pay themselves under statute, so if you are executor/administrator and you hire counsel, the attorney can utilize his or her experience to expedite the process for the same small fee you can charge, or waive if you also are a beneficiary or heir.
Do I need a lawyer to settle an estate without a will?
No. However, as the value of the estate exceeds $500,000, it becomes prudent to work with a probate lawyer, if only to reduce the risk of mistake and future litigation. For example, an experienced probate lawyer is more likely to follow probate code procedure more accurately, which limits the ability of other individuals to sue the estate, as well as avoids delay and potential litigation over those delays. As the value of the estate increases beyond $1,000,000 lawyer fees become nominal. And in the cases of very high value estates, over $5,000,000, working with a probate attorney is critical, as these more sophisticated, higher value estates almost always come with wrinkles a layman may not identify.
Facing probate litigation?
RMO experienced attorneys will advocate for your rights and interests.
Serving clients across California and Texas
When should I contact an estate attorney?
Contact an estate attorney or probate attorney as soon as you can after the death of a loved one. The estate attorney or probate lawyer will help you do everything from locating the will, to filing the petition for probate, setting up the estate account, identifying and gathering assets, identifying heirs and beneficiaries, negotiating and paying debts, accounting, distributing assets, and closing the probate. And remember, they work to a standardized set fee, which is paid by the estate. So, it costs you, effectively, nothing.
Do I need an estate attorney near me?
We recommend finding an experienced estate attorney or probate attorney familiar with the county probate court in the county of the decedent’s estate. For example, if the decedent lived in Los Angeles, we recommend working with a probate attorney in Los Angeles. A Los Angeles probate attorney will generally be more familiar with the Los Angeles Superior Court Probate Division, versus an out of state attorney.