Should You Let Your Family Go to Probate in California?

Avoiding probate is always preferred, and if you can keep your estate from having to go through probate, you should. However, there are instances in California when you can’t avoid it. There are several reasons why you wouldn’t want your family to have to deal with probate and what may cause them to have to.

Disadvantages of Probate

Before considering how to avoid probate, it is useful to understand why an estate planner would want to avoid it. One of the most common reasons people aim to keep their estates out of probate is because the process is lengthy and, for the most part, a hassle. It also costs money. Court fees for filing a Petition for Probate are equal to a certain percentage of the value of the estate, and then there’s the cost of a probate attorney. If the will is contested, litigation costs can be insurmountable. By avoiding probate, you can also keep someone from contesting your wishes altogether.

Finally, one of the biggest reasons individuals avoid probate is because they want their financial affairs kept private. The details of cases are not kept private in probate court, and while most people have nothing to hide, they prefer information about their estate to not be privy to just anyone. Furthermore, a public notice of the deceased’s estate and/or will is a mandatory part of the probate process. This seeks to notify any other interested parties in the event they wish to file a claim against an estate. Thus, probate opens the estate up to naysayers and debt collectors.

Leaving a Will Guarantees Probate

All wills must go through probate court. One of the primary reasons for probate court is to validate wills. It also serves the purpose of making sure that the debts of an estate are paid. The executor of an estate will carry out the distribution of the remainder of the estate to beneficiaries, according to the instructions in the will.

Another purpose for probate is to establish heirs for an estate when there is no will. This is referred to as intestate. There are levels of hierarchy set by the state that the court uses to distribute assets. In either case, probate leaves room for interested parties to contest a will or the establishment of an estate when there is no will.

The question remains as to how one can avoid probate if an estate must go through probate, whether there is a will or not. There are a variety of alternatives to having a will or not having one. First, if an estate’s value is less than $166,250, regardless of whether there is a will, it is considered a small estate and can go through a simplified probate process that is also expedited.

For estates larger than $166,250, estate planners can select from the following options to avoid probate for their families:

  • Joint Ownership of Financial Accounts, Real Estate, and Vehicles – For bank accounts and other financial accounts, simply adding another person to the account automatically transfers ownership of the account to the joint account holder upon the passing of the other account holder. This is convenient, but joint account holders must ensure that the other person named on their account is someone they trust to have such unlimited access to their financial assets. The same thing applies to real estate and car deeds. In the case of real estate assets, the joint owner should have a joint tenancy, with rights of survivorship, to avoid probate.
  • Transfer on Death of Owner – If you aren’t comfortable adding a joint owner for real estate and real property, like cars, a deed with transfer on the death of the owner will also avoid the need for probate.
  • Designated Beneficiary – Bank accounts, 401ks, IRAs, and life insurance policies can be directed as transferable on death (TOD) or payable on death (POD) and will transfer ownership without going through probate.
  • Irrevocable and Revocable Trusts – A trust allows an individual to have complete control of their assets without having the assets in their name. When the trustor, or grantor, passes away, the trustee sees that the beneficiary of the trust receives the assets accordingly without the need for probate.

FAQs

Q: Why Avoid Probate in California?

A: In estate planning, most people avoid probate for the convenience of their loved ones. That way, they will not have to wait out the lengthy probate process or deal with the hassle of it. Other reasons to avoid probate include prevention of contests and keeping the court and the public out of their assets and other business.

Q: What Is the Ideal Way to Avoid Probate in California?

A: To avoid probate in California, estate planning should include assets with a transfer of ownership upon death, payable on death, or joint ownership of financial accounts or deeded property. Designated beneficiaries should be named on retirement accounts and life insurance policies. Setting up a trust is also a secure way to avoid probate.

Q: Is Probate Necessary in California?

A: Probate is necessary whether someone dies with or without a will. If an individual carries out careful estate planning before they die, they can avoid probate by using tools like:

  • Trusts
  • Transfer of ownership upon death deeds and titles
  • Designating beneficiaries on life insurance policies and retirement accounts
  • Sharing joint ownership of financial accounts

Q: How Much Do You Have to Have in Assets to Avoid Probate in California?

A: The following may qualify for an expedited and simplified process of probate:

  • Estates valued at less than $166,250
  • Designated beneficiary policies
  • Accounts with spouses who are married or in a registered domestic partnership with the deceased

However, the only way to avoid probate is to guarantee that all your assets are established in formats other than a will.

Getting Legal Assistance With Estate Planning

If you’re thinking of hiring a probate attorney to help with your estate planning needs, the Estate Preservation Group is a law firm that focuses specifically on estate law and trust administration. We can provide the experience and knowledge to help you alleviate the stress of probate for your loved ones. Contact the Estate Preservation Group today and get your estate in order. We can help you feel secure that your assets can be distributed precisely according to your wishes.


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