What is probate? Simply put, it is the legal process by which the decedent’s liabilities are satisfied, title to decedent’s property is cleared and passed to the decedent’s heirs or beneficiaries, and federal and state taxes are paid.
Is probate avoidable? Yes. Not all assets standing in the decedent’s name at the time of death need to have title cleared through probate proceedings. Title held as joint tenants with a surviving joint tenant, pass automatically by operation of law to the survivor through a simple affidavit procedure.
Similarly, accounts which are payable on death to a designated surviving beneficiary such as life insurance policies, retirement accounts, brokerage accounts, and the like, pass to the beneficiary without probate. Again, an affidavit procedure is utilized.
For small estates under $150,000, there are also special affidavit or petition procedures to clear title and transfer personal or real property to heirs or beneficiaries. A popular way to avoid probate, even for large estates, is through a trust. Assets held by a trustee, in trust pursuant to a written instrument, pass to the designated successor trustee without probate.
If an estate requires probate, the procedure can take a very long time. It would be rare for an estate to be closed sooner than six months: nine months to a year is more likely. It can take much longer depending on many factors including the nature and amount of claims filed, whether there are any objections to an appointment or an accounting, whether the decedent was involved in litigation at the time of death or had surviving claims, and other factors.
It is not surprising that savvy individuals and couples seek to avoid the expense of lengthy probate proceedings through estate planning. Once thought of as only for the wealthy, estate planning devices such as revocable living trusts and pour-over Wills are used by more and more average, every-day people.
If you want to assure your last wishes come true without unnecessary burden and expense to your loved ones, I can make it happen. Let me help you make the right estate planning choices. The default procedure — probate — rarely is what you would choose after the fact. Do not add to your loved ones burden and expense with ambiguous or improperly drawn testamentary documents drafted yourself or by a legal document assistant. There are too many traps and pitfalls. You need a qualified California attorney.