In legal terms, California “probate” identifies a legal process of evaluating and distributing a person’s assets after they have died. After a person dies, their assets and possession become an estate, and probate is the legal process of inventorying and distributing those assets to creditors, taxing authorities, heirs, and others. Probate proceedings are handled by California Probate Courts. There are many problems with probating an Estate in California and, thus, many reasons why probate is to be avoided to the extent possible. The problems include:
- Estate assets are “locked” until the probate process is finished: This means heirs and family members have no access to those assets for their day-to-day and other needs
- Probate is expensive and, for large Estate, probate is VERY expensive
- Probate proceedings are slow: The average time to complete a California probate proceeding ranges from 12 to 18 months
- California probate proceedings are public: No privacy and confidentiality for the family and heirs
For these and other reasons, many California residents seek to avoid probate proceedings entirely. This is true even for those with small to mid-sized estates. In this article, the estate planning attorneys at the Guardian Litigation Group discuss some techniques for avoiding probate proceedings in California. For an Estate Planning consultation, call us at (800) 316-3133. We are located in Irvine, CA, and offer Estate Planning services for all California residents.
Speaking very broadly, the techniques for avoiding California probate all involve methods of excluding assets from the decedent’s estate. By statute, certain assets are excluded from what must be probated. Further, probate is only legally required if the total value of the estate is greater than $184,500. Thus, the goal of avoiding probate is achieved by getting as many assets as possible out of the estate before death and ensuring that the value of the remainder is less than $184,500 at the time of death.
As we have discussed in other articles here on our blog, the best and most effective vehicle for this is creating a Revocable Living Trust. At first, a Living Trust can be cumbersome, but there is a learning curve, and after a while, using the Trust will be relatively easy. A Living Trust involves giving the Trust legal ownership of all of a person’s assets, including real property, financial accounts, vehicles, etc. The person creating the Living Trust is the Trust “maker,” the Trustee, and the beneficiary of the Trust. Thus, in practice, the property owned by the Trust is largely used and controlled in the same manner as before the Trust was created. However, for probate purposes, the assets in the Trust are not owned by the decedent. Thus, those assets are not part of the probate estate.
Other techniques include:
- Moving assets from single ownership into joint ownership: Generally, an asset (like a financial account) that is jointly owned becomes the sole legal property of the surviving joint owner if a co-owner dies; ownership passes through legal mechanisms, and such assets are not included in a decedent’s estate.
- Identifying specific persons (or a Living Trust) as the beneficiary of instruments like life insurance policies, retirement accounts, death benefit policies, etc.
- Placing assets and/or value into various types of specifically designated “transfer-on-death” accounts or financial instruments, like some types of securities instruments.
Contact Our Experienced Irvine, CA, Estate Planning Attorneys
For more information, contact the Irvine estate planning attorneys at Guardian Litigation Group. Our Mission is to provide unparalleled Estate Planning legal services for our clients. We can be reached via our contact page or by phone at (949) 444-5474. We are located in Irvine, California.