Ways to Avoid the Time and Expense of a California Probate Proceeding

Most people know that if they obtain a will their assets will be distributed according to their final wishes.

But the process of asking a court to actually make the distribution - called probate - can be lengthy and expensive. It's also a public proceeding in most states, so privacy concerns do exist for many. Probate starts when the executor of the estate, who is named in the will, files a petition to the Superior Court (in California) to be officially named by the court. Along with the petition the executor will file the will. If the person died without a will, the court allows certain individuals to petition the court to become the administrator of the estate. After the personal representative is appointed the court will allow a period of time (four months) to allow potential creditors time to notice the estate and collect. Only then can the executor begin distributing the remaining assets to the heirs.

The elapsed time from the filing of the paperwork in court to closing the probate case is often at least eight months and can last a year or more.

Methods to Avoid Probate

If avoiding probate is a priority of your estate plan, there are methods to reduce or even eliminate the length and cost of probate.

A primary method for avoiding probate is the revocable living trust. In this case, you put assets and property into a trust and upon death the trustee distributes the assets and property according to what is spelled out in the trust. While reliable, a revocable living trust is a complicated legal document and those interested in pursuing this option should speak with an attorney.

Property can also avoid probate according to how it is owned or designated. For example, a bank account can carry a " payable on death" (also known as "transfer on death") designation which indicates where the assets should go upon the death of the owner. The named beneficiary has no present interest (ownership) in the account - they cannot touch the money while the original owner is alive. Similarly, retirement accounts, vehicles and stocks and bonds can also have named beneficiaries that will pass without the need for probate.

In addition, property can be owned in " joint tenancy with right of survivorship," as is often the case with a married couple who own a home together. Upon the death of one owner, the entirety of the property or asset passes to the other joint owner automatically, by law.

Finally, California allows any estate with under $100,000 in personal property to pass to heirs without opening a probate procedure. To do this, the heirs submit an affidavit to the court 40 days after the death, stating the value is under $100,000 and they otherwise meet the relevant California Probate Code requirements.

For More Information

This is a brief article that only touches on some of the ways to avoid probate. If you are looking for more information on the probate process and whether you should avoid it, contact an estate planning attorney to discuss your specific situation.