Do I Have To Go To Probate Court?
In California, as in most states, there are many way to avoid probate. First, we need to understand probate and the probate process. Then, we’ll discuss possible ways to stay out of court.
What is probate court?
Probate is the process of transferring property after someone passes away through the court system. In most of California (including the cities that The Law Offices of David Baker serves: San Francisco, Berkeley, Albany, Pinole, Crockett, Martinez, El Sobrante, El Cerrito, Vallejo and Richmond), probate and family court are separate because the procedures in probate are different and more specialized than those used in family court. If you are familiar with family court, you will find the probate process and systems unfamiliar.
Why is probate court slow and expensive?
Probate in California was originally designed to protect the beneficiaries of an estate. To do this, every single step in the long process has many built-in safeguards. Each part of the process has to go through the court and involves your attorney; therefore making it slow, and expensive.
How does probate court work?
Unlike family court, there is typically no staff to help you fill out the paperwork, pay the filing fees, guide you on how to publish notice of the proceedings, or even inform you if you need to file a probate proceeding or what it means. Going into this process without knowing the steps makes it even slower and extremely difficult do complete successfully without the professional help of a probate attorney.
How do I avoid the long court process?
Fortunately, in many instances, the court process and safeguards that take so long and cost so much, are not necessary to make sure the beneficiary receives what is intended. Over time, many ways have been developed to avoid probate and probate court. It is important to explore these options before deciding to go to court.
A Living Trust is the Best Way to Avoid Probate
A living trust is the best way to avoid probate. An attorney-drafted estate planning package, which includes a living trust has enough built in safe guards that the risk of a probate proceeding is quite remote. One of the reasons that an estate planning package is so large and has so many documents is because of all the safeguards. One such safeguard is a special will, called a pour over will, and another is a properly drafted schedule of all the trust assets.
Jointly Held Property, Beneficiary Designations, Payable on Death Clauses
You can also avoid probate by holding property jointly, setting up beneficiary designations, or payable on death clauses. However, each of these tools has a weakness. For example, some of my clients have had nasty shocks when their jointly owned property disappears when a creditor of the other joint holder takes the property. Likewise, there can be problems when the designated beneficiary predeceases the owner of the property and the owner fails to have a back up beneficiary or fails to update the beneficiary designations.
Small Estate Affidavits
In California, the state legislature has recognized the problems of probate and has set up a process through a small estate affidavit. However, the small estate affidavit has its own limitations. Generally, the value cannot exceed $150,000 and in some cases, in order to establish that it is less than $150,000, a probate referee must be appointed to value the property. Likewise, this device does not solve the problem of property being distributed to the nearest blood relative under what is known as the laws of intestacy if there is no estate planning document such as a will or trust.
None of these is rocket science but neither is it common sense or intuitive. To understand this technical information requires more than reading cold print; a one on one discussion really helps.
These are the kind of discussions we have with our clients each day. While you can read about the probate process and more about avoiding probate here, a discussion with us is the best way to determine whether probate will be necessary. Call us or contact us today to discuss your options (510) 724-2020