Probate is a formal process to settle a person’s estate when they pass, whether or not there is a will. Since probate is supervised by the deceased’s residential county probate court, that county’s law ultimately decides who receives the money or property of the deceased.
If a will is in place, the county ensures that the deceased’s final wishes are met regarding the allocation of wealth or property. If there was no will in place upon a person’s death, the probate court would distribute the deceased’s assets according to state law.
Why Do I Want to Avoid Probate Court?
It’s a common misconception that avoiding probate avoids estate taxes, which is untrue. So why is it something you want to avoid? These are a few of the things your family can bypass if they do not have to go through the probate process:
- Unnecessary Expenses: Probate can become extremely expensive very quickly. Attorney fees, executor fees, and court fees involved in the entire probate process can turn what is meant to be an automatic procedure into a costly ordeal.
- Waiting: Probate is a time-intensive process that could tie up your assets in court, keeping them out of the hands of your beneficiaries who may desperately need them to take care of your debts. Your bank accounts are frozen during the probate process, from leftover taxes and unpaid bills to funeral costs.
- Family Disputes: If a will goes through probate, anyone who is a beneficiary of the will gains the opportunity to contest the will. If there is no will, this can get even messier.
- Public Eyes: Your records become fully public when going through the probate process. If there are things you’d rather keep private, you want to avoid your assets going into probate at all costs.
What Are Some Tips to Help Avoid Probate Court?
So now you know that probate can be a costly, lengthy, public affair that risks splitting apart the family you leave behind. What are some things you can do to prevent your beneficiaries from going through it?
- Create a living trust: a trust document, akin to a will, designates someone as trustee over your assets after you pass. If you establish yourself as the trustee, your successor trustee will have control to transfer assets to the trust beneficiaries without going through probate court.
- Leverage the right of survivorship: Joint tenancy or community property with right of survivorship documents exist in California to give someone joint ownership of your assets. That person will be the sole owner when you pass, leaving nothing to probate.
- Use “-on death” documentation: “Transfer-on-Death” deeds, registrations, and securities, along with “Payable-on-Death” bank accounts, will trigger designated beneficiaries upon your passing. Essentially, for as many of your physical and liquid assets as you are able, create a document appointing an heir who will take over ownership upon your passing.
A Loved One Was Unable to Avoid Probate, What Do I Do?
If you or someone you know has recently experienced the death of a loved one whose assets were not adequately designated and is now having to go through the long, tedious process of probate court proceedings, call or consult with an attorney with experience in estate law. Additionally, now is the right time to secure your own assets for those you love. No matter the size of the estate, it is always advisable to legally document your wishes. These can always be updated in the future if your needs or wants change. Call our law office at (805) 244-5291 if you have further probate questions.