California Purgatory: Understanding And Avoiding Probate

If there is one thing that awaits us all, it is death. But what awaits our assets and property is less certain. In California, however, there is one fate less desirable than others, especially when it comes to costs and conflicts: probate. This article will explain what the probate process is, as well as:

• Reasons to avoid the probate process, especially in California.
• Three easy-to-implement estate planning tools to avoid probate for property in California.
• The perils and the consequences of trying to navigate California probate on your own.

What Is Probate And What Triggers Probate In California?

Probate is a court process that distributes your assets after your death. It is required to transfer assets out of your name and into those of your beneficiaries. It operates according to one of two procedures.

If you have a will, then the procedure will be for a ‘testate’ death. If you die without a will, you die “intestate”, and the procedures are different. Every state has what’s called intestacy statutes which determine where your assets will go by state law if you don’t have a will. If you die with a will, the probate court follows the directions in it. After all, a will is basically just an instruction to the probate court on how to distribute your assets.

In California, as of 2022, probate is triggered if your estate includes $184,500 or more in assets. If you own a house in California, chances are you have at least that much equity in it. On the other hand, it isn’t actually that hard to avoid probate entirely with the right estate planning attorney to help.

Can I Avoid The Probate Of My Estate After Death?

It is absolutely possible to avoid probate entirely, and there are plenty of straightforward estate planning tools for doing so. With an estate planning attorney to help, you can consider each one of your assets and determine the method best applicable to avoiding probate for it. Take a house for example. Here are three ways a house can avoid probate.

The first way is to own it through a joint tenancy with another person. If you are married, you probably took your house as community property with survivorship rights. When one spouse dies, the other spouse inherits the entirety of the house. That’s an operation of law and won’t require passing through probate court.

A second way, in California, is called a transfer on death deed. Other states call that a beneficiary deed and it is when you list the name of the beneficiary right on the deed, so it does not transfer ownership during your life.

After you pass away, the legal title is transferred to the beneficiary that is listed on the deed. All the beneficiary will have to do is file a certified copy of your death certificate with the county recorder and an affidavit of secession to claim it. Thus the legal title is transferred on death without probate court.

The third way you can have a house avoid probate is to retitle it using a grant deed. Other states call that a special warranty or a quick claim deed, and involves you retitling it to the name of a living trust.

How Can A Living Trust Help Me Avoid Probate For My Property And Assets In California?

If you own a house or other asset personally, then when you die, it is a probate asset. On the other hand, if you retitled it to a living trust, the trust does not die when you do. This makes trusts one of the easiest, or at least the most generally applicable, ways to avoid probate entirely. Simply retitle any and all assets and property into a revocable living trust.

If you do, you will not have anything to probate because the trust survived you. The trust is instead created such that when its creator dies, someone else becomes the trustee, and they have to follow your distribution wishes or instructions. It can even be made to provide a more nuanced, long-term, or detailed distribution than probate.

A trust also saves time and effort for your beneficiaries.

Are There Other Methods For Avoiding Probate In California?

There are many other methods for avoiding probate; almost any type of asset has a method that will work for it specifically. Take life insurance, a common example of a beneficiary designation. Which is where the account or asset is designated to go to someone specific when you die. It could work with a bank account, but you could just as easily do joint ownership with another person.

If you do use beneficiary designations, however, it will be up to the beneficiaries you choose to figure out where the account is and what financial company has the account, and then they have to claim it. They will have to submit a certified copy of your death certificate to them and fill out that institution’s claim paperwork. If there are multiple beneficiaries and multiple accounts, it starts becoming a lot of work.

If you use a trust, on the other hand, everything is held together, one person is in charge, and then they do all the work, which is often as easy as contacting the company. Then they distribute or liquidate all the assets and then divide it by the percentages that the trust recommends or requires for the payout.

Can Someone Realistically Try To Navigate The Probate Process On Their Own Without An Experienced Probate Attorney?

It is certainly possible to fulfill all the procedures and legal requirements of probate without an attorney. There is no legal obligation to represent yourself in a civil case, and can certainly be your own probate attorney.

Unfortunately, the probate process in California is extremely complex, even for attorneys. The best result you’re going to have will inevitably be from someone who navigates that system on a daily basis. An experienced attorney will know how to deal with probate court examiners. They know what documents you need to file and how to fill out the forms, which are actually quite complicated if you’ve never seen them before.

While it will cost money to hire an attorney for probate, with fees set by statute, the cost of not doing so could be even higher. Inevitably, however, the most cost-effective method is probably avoiding probate entirely by using a revocable living trust and being the successor trustee. For more information on The Probate Process In The State Of California, an initial consultation is your next best step.