Probate is a court-supervised process that facilitates the transfer of estate assets to beneficiaries and heirs. While there are benefits and drawbacks to probate, most individuals would prefer to plan their estates in a manner that avoids or minimizes its impact. Careful drafting of your estate plan, working with a knowledgeable attorney, is essential to avoiding probate as much as possible.
That’s where the attorneys of Schneiders & Associates, LLP come in. We can explain how probate works and then get to work creating a plan that preserves more of your assets for your heirs and beneficiaries. Count on our dedicated legal team to work for your and your family’s best interests.
What Is Probate?
When a person dies, certain individuals have the right to inherit their assets regardless of whether the deceased left behind a last will and testament. To ensure that the estate property is correctly identified, that only legitimate heirs claim it, and that estate debts are paid, most estates must undergo probate. But not all assets have to be probated, and estates below a certain dollar value need not go through this legal process.
If probate is necessary, it does come with some benefits (besides proving who can actually inherit from the estate):
- Protection from creditors
- Certain types of tax protection
- Resolution of estate disputes among surviving heirs
- Legal finality
However, most people in Ventura County generally prefer to avoid probate of their or their loved one’s estates if they can help it. That’s because there are several disadvantages to this process, such as:
- It is a potentially expensive process
- Probate takes considerable time to complete
- There may be complications and court delays
- It can possibly cause or aggravate conflict among heirs
- The estate and its assets become a matter of public record
What Are the Best Ways to Avoid Probate?
Every estate is different, so it’s important to consult with an experienced estate planning attorney to design or update your plan. Among the most commonly held assets and estate types that do not have to go through full probate are:
Trusts
One of the main purposes that people establish trusts is to avoid probate. There are a variety of trusts, but in general they are created to support and provide assets for beneficiaries without the need for probate. Trusts also allow assets in a person’s estate to be kept private since they are not subject to probate. Proper drafting of the trust language is essential, and our firm regularly assists individuals and families in Ventura County with this process.
Jointly owned property
If the property you leave behind is held jointly with another person (joint tenancy), it can forego probate. For instance, if you add another person’s name to a bank account, home, or vehicle, then after you die that person can take full possession of it. Joint tenancy is distinguished from property that is held as tenants in common (with each person owning a specific share of property). That type of property is not exempt from probate.
Beneficiary designations
If you own a retirement account or life insurance policy, you can name certain individuals as beneficiaries to these assets. The process is fairly simple and involves completing a beneficiary designation form and then filing it with the appropriate institution, such as your employer’s retirement plan or the life insurance company. When you die, the designated beneficiary to these accounts will get to claim the property or value of it and not have to bother with probate.
Simplified probate
California has what is called simplified probate for estates whose dollar values are under a certain amount. Whether this option applies will depend on the value of the property, the kind of property, and other circumstances, so retain a Ventura County estate planning lawyer. These are a few common scenarios in which the simplified process may apply:
- The decedent left behind $20,000 or less in assets: The surviving spouse or children can ask the court to set aside the estate rather than have a full probate proceeding. This is done by filing a petition. But note that survivors may still have to pay outstanding debts and there may be tax consequences.
- The decedent left behind personal and real property totaling $166,250 or less: Survivors can file a declaration that allows them to collect and distribute the decedent’s personal property to heirs or beneficiaries. This procedure is not used to distribute real property and there are other rules that govern it.
- The decedent left behind real property worth $50,000 or less: Heirs can take advantage of simplified probate by filling out an affidavit that includes an inventory, appraisal, and description of the real property. Other steps and requirements apply. The value of the decedent’s personal property is irrelevant.
There may be other options to avoid the more complicated full probate procedure, and the above dollar values and procedures are subject to change. But in general, if the decedent did not leave behind many assets, it’s worth speaking with an attorney to see if you can use California’s simplified probate process.
Contact Our Ventura County Attorney to Avoid Probate
At Schneiders & Associates, LLP, we work hard to help our estate planning clients keep more of their hard-earned assets within the family while avoiding or minimizing the cost and intrusion of probate. Let us review your unique situation and advise you on ways that your estate can potentially bypass the probate process. Give us a call or complete our online form today to learn more.