How to Avoid Probate in California

Probate is complicated, time-consuming, and stressful. Family, friends, the government, and creditors can and will raise objections, ask for more than their fair share, cause confusion, and delay the process. Below you will find basic information to help you understand what probate is, as well as how to avoid it.


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What Is Probate?

Probate is the formal process by which an estate is settled under the court’s supervision after a person’s death. Since the court oversees the probate process, the law decides who gets that person’s money and property.

Probate occurs whether or not there is a will. If you die without a will, the court will distribute your assets according to state law. The probate process is often the last option for transferring assets when you have no other choice.

Why Should You Avoid Probate?

There are four main reasons why you should avoid probate in California.

  1. It’s expensive. Because probate is administered by the court, your estate will need to pay fees to an attorney and an “Executor” who must be appointed to manage the process. Other expenses your estate will incur include both court fees and appraisal fees.
  2. It’s stressful and time-intensive. As a court-administered process, probate requires court-supervised activities and lots of paperwork filing with the court. So, it ends up being a frustrating, complex, and lengthy process that can last up to 2 years.
  3. It’s potentially embarrassing. Any documents that are filed as a result of the probate process are public record. So, the value of your assets, intended beneficiaries, and any conditions for their inheritance is going to made available for public review.
  4. It’s out of your control. You will be putting the fate of your estate in the hands of a judge you may not know or who does not have your family’s interests in mind.

How to Avoid Probate: 6 Actions to Consider

There are many legal actions you can take now to transfer ownership of your assets so that they avoid probate in California. Below are six to consider:

1. Make a Gift

You can give your assets to others before you die. This will help you avoid owning the assets at the time of your death and subjecting them to probate.

2. Living Trusts

In California, you can hold most any asset you own in a living trust to avoid probate. Real estate, bank accounts, and vehicles can be held in a living trust created through a trust document that names yourself as trustee and someone else – a “successor” trustee – who will take over as trustee after you die. When you die, your successor trustee can transfer the living trust to the beneficiaries without probate court proceedings.

3. Joint Ownership

Property owned jointly with someone else who has “right of survivorship” avoids probate by automatically transferring to the surviving owner when the other owner dies. In California, there are two forms of joint ownership:

Joint Tenancy

In California, two or more owners, or joint tenants, own equal shares of property that automatically pass to the surviving owners when one owner dies. Joint tenancy, by definition, always includes the right of survivorship.

Community Property With Right of Survivorship

As a community property state, California considers spouses and registered domestic partners to own all property acquired during marriage jointly unless one left a will that directs otherwise. Community property with the right of survivorship automatically pass to the survivor when one spouse or partner dies.

4. Revocable Transfer on Death Deed

Effective January 1, 2016, California allows real property to be transferred upon death through a revocable transfer on death deed to avoid probate. The law sunsets on January 1, 2021.

5. Payable-on-Death Designations

California law allows you to add a “payable-on-death” (POD) designation to bank accounts, including savings accounts and certificates of deposit. As a result, you control all your money in the account and your POD beneficiary does not have any rights to the money. When you die, your beneficiary can claim the money directly from the bank without going through probate.

6. Transfer-on-Death Registration for Vehicles

1.In California, you can name a beneficiary to inherit your car after your death with a transfer-on-death registration for vehicles. If you register your vehicle this way at the DMV, the beneficiary you name will automatically inherit the vehicle after your death.

Avoiding Probate With a Well-Written Estate Plan

By writing an estate plan, you can protect your loved ones from the cost, delays and frustration of probate. If you would like more information about creating an estate plan, speak to an estate planning attorney at Herbert Law Office. Contact us today.