Probate in California can be a long and costly process. But there are several ways you can avoid probate and transfer property to your heirs without going through the courts. Chico estate planning attorney Daniel Rodriguez outlines five key strategies to avoid probate in California.
First off…What exactly does probate mean?
Probate is the legal process that distributes property when someone dies. It involves validating the will, identifying assets, paying debts, and distributing property to beneficiaries. The probate court oversees the process and can take over a year in California, depending on the size of the estate. There are good reasons why you should make efforts to avoid probate!
Why Would You Want To Avoid Probate Court?
Here are some of the most common reasons people want to avoid probate in California:
- It’s expensive. Attorney’s fees, appraisal costs, filing fees, and executor commissions can eat up a significant portion of the estate’s value.
- The state of California determines probate attorney fee commissions based on the estate’s total value. For estates valued over $150,000 but less than $25,000,000, the statutory fees for attorneys and executors in California’s probate cases are a sum of the following:
- 4% on the initial $100,000
- 3% on the subsequent $100,000
- 2% on the next $800,000
- 1% of subsequent $9,000,000
- .5% of subsequent $15,000,000
- It’s time-consuming. The process takes over 12 months on average in California. Beneficiaries must wait to receive inheritances.
- It’s very public. Wills and details of assets become public records during probate. Many prefer to keep estate matters private. This can invite predators.
- It can be contentious. Heirs may dispute the validity of wills and challenge executor decisions during probate.
Fortunately, there are several effective ways to avoid probate in California, which we’ll outline in this article. With proper planning and an experienced estate planning lawyer on your side, you can minimize or even eliminate the need for probate.
5 Ways to Avoid Probate in California
Here are 5 of the most common and effective strategies people use to avoid probate in California:
1. Create a Living Trust
A revocable living trust is one of the primary ways people avoid probate. You transfer assets like real estate, accounts, and investments into the trust while alive. Upon death, the trust assets pass directly to beneficiaries without the need for probate. The trust lets you retain control of assets while avoiding probate.
Living trusts avoid probate, are private, and allow for efficient transfer of assets to heirs. Future attorney’s fees, filing fees, and executor commissions can also be avoided. It takes proper planning and maintenance to avoid probate fully. But overall, living trusts are an excellent probate avoidance strategy.
2. Own Property with Right of Survivorship
Holding assets jointly with survivorship rights is another method through which property can bypass the probate process in California. Common examples include joint bank accounts, cars owned jointly, and real estate owned as community property with the right of survivorship.
Upon the death of one owner, their share passes directly to the surviving owner. No need to go through probate. Maintaining up-to-date titling of assets is crucial to avoid probate this way effectively.
3. Use Payable on Death & Transfer on Death Options
Naming beneficiaries on accounts through payable on death (POD) and transfer on death (TOD) designations lets those assets pass directly to beneficiaries and avoid probate.
This approach works for bank accounts, retirement accounts, vehicles, stocks, bonds, real estate, and other assets. Keep beneficiary designations updated to ensure your assets go where intended.
4. Gift Away Assets While Alive
Gifting assets to heirs while you’re alive is an easy way to avoid probate. Whether gifting small amounts each year or larger lump sums, once given away, the assets are out of the estate and avoid probate.
Gifted assets like real estate, cash, cars, and investments go directly to the recipient. Make sure to document gifts and report to the IRS if required properly.
5. Use a Small Estate Affidavit
In California, smaller estates under $166,250 can avoid full probate using a small estate affidavit. Assets are collected, debts paid and then distributed using the affidavit process. Filing fees still apply, but overall, it’s a quicker and simpler probate alternative for smaller estates.
Frequently Asked Questions:
Q: What are probate assets?
A: Probate assets are assets that are subject to probate proceedings. They include assets held solely in the deceased person’s name without designated beneficiaries or joint ownership. Probate assets include certain bank accounts, real estate, personal property, and investments.
Q: What is the role of a probate attorney?
A: A probate attorney focuses on probate law and can provide guidance and help throughout the probate process. They can help you create an estate plan, navigate probate procedures, handle legal challenges, and ensure that your assets are allocated according to your wishes.
Q: Can I avoid probate by executing a transfer on a death deed for real estate?
A: Yes, executing a transfer on death deed (TOD deed) for real estate is one way to avoid probate in California. It allows you to designate one or more beneficiaries who will inherit the property upon your death without the need for probate. However, TOD deeds have specific requirements and limitations, so it’s important to consult with an attorney for guidance.
Key Takeaways to Avoid Probate in California
Here are some key tips to remember when planning your estate to avoid probate in California:
- Probate is a legal process that can be costly and time-consuming.
- Small estates may qualify for simplified probate procedures or avoid probate entirely.
- There are many ways to avoid probate, including creating a revocable living trust, understanding property ownership, designating beneficiaries, utilizing transfer on death deeds, and gifting assets.
Ensuring a smooth transition of your assets to your loved ones without the burdens of probate is paramount for many Californians. Leveraging these strategies not only streamlines the transfer of your assets but also safeguards your legacy and provides peace of mind. At Legal Norcal, our commitment is to provide guidance to Chico residents and those throughout Northern California. Entrust your estate planning to us, and together, we’ll navigate a path that secures your intentions, honors your legacy, and ensures the well-being of those you cherish most.
Contact us now to discuss your options.