Probate refers to the court-supervised process of validating a decedent’s will, if one exists, and distributing the contents of the estate to beneficiaries. California’s probate process can be incredibly complicated, time-consuming, and expensive. In most cases, your loved ones will be forced to undergo probate before they gain access to their inheritances. However, there are certain steps you can take now to protect your estate assets from probate after you pass away and ensure your beneficiaries can receive their intended portion of the estate as quickly as possible.
Do All Estates Go Through Probate in Rocklin, California?
Not all estates must go through probate in California, and specific assets may be transferred informally outside of probate court. Assets held in a living trust automatically transfer to the beneficiaries listed in the trust document.Property owned by two or more individuals as joint tenants automatically passes to the surviving owners when one owner dies. Community property with right of survivorship is inherited by the decedent’s surviving spouse or registered domestic partner. Assets with named beneficiaries, payable-on-death designations, or transfer-on-death registrations can be transferred without going to court.Real estate property can also be transferred outside of probate court with a transfer-on-death deed.
Any assets or property within the estate that do not qualify for an informal transfer are typically subject to division and distribution through probate court. The exact process for handling the estate depends on whether the decedent died with a will or without one (known as dying intestate). With a valid will in place, the executor must file the will with the probate court and petition a judge to open a probate case so they can obtain the legal authority to manage and distribute the assets to beneficiaries according to the terms of the will.
When the decedent dies intestate, a surviving spouse or heir petitions the probate court to be appointed as an estate administrator. They are granted the authority to distribute the assets to the decedent’s closest surviving relatives. Under intestate succession laws, assets are first distributed to spouses and children, then parents and siblings, and so forth to relatives of increasing distance.
How Can I Avoid Probate?
The most effective way to avoid probate is to draft a comprehensive estate plan with assistance from an experienced estate planning attorney. An attorney can help you set up a living trust, title your property with joint ownership or rights of survivorship, and designate assets as payable-on-death or transfer-on-death.
- Living Trust
A living trust is a legal document that transfers ownership of assets and property from yourself to the trustee, who is responsible for managing them on your behalf if you become incapacitated and distributing them after your death according to the terms of the trust document. It is also possible to name yourself as trustee, but you must designate a successor trustee to take over the trust after your death. In the trust document, you name the beneficiaries you intend to inherit portions of your estate, list the specific assets they will receive, and dictate the terms of distribution. For example, you may decide to set up a trust that pays out in regular intervals or after important life events, such as a birthday or marriage. Because the assets in a trust pass automatically to beneficiaries, they are not subject to probate and the specific terms of the trust are not available to the public.
- Joint Ownership
Two forms of joint ownership are available in California – joint tenancy and community property with right of survivorship. Often used for real estate property, a joint tenancy is a legal relationship in which two or more people own property with equal interest, rights, and obligations. Any property owned in joint tenancy with others automatically passes to the other owners without involving the probate court. Community property includes all property acquired and jointly owned by spouses or domestic partners during their marriage, such as real estate and investment accounts. Titling an asset as community property with right of survivorship allows the property to automatically transfer to the surviving spouse when the other spouse dies without going through probate.
- Payable-on-Death Designations
Adding a payable-on-death designation to bank accounts, savings accounts, and certificates of deposit allows you to retain control of the funds in these accounts during your lifetime and ensure the beneficiary can claim access to these funds after your death without undergoing probate. You can convert almost any type of bank account into a payable-on-death account by filing forms that designate a beneficiary, and you can make changes to the account during your lifetime, such as spending funds, naming a different beneficiary, or closing the account entirely.
- Transfer-on-Death Registrations and Deeds
Transfer-on-death registration works similarly to payable-on-death designations and allows you to register stocks, bonds, and brokerage accounts with named beneficiaries who automatically inherit these assets at your death. Beneficiaries do not have access to the securities while you are alive. When you die, they can claim these assets by directly contacting the brokerage firm, identifying themselves as beneficiaries, and providing proof of death. You can also register a vehicle with a transfer-on-death beneficiary who will automatically inherit the vehicle after your death. With a transfer-on-death deed, you can leave behind residential property for beneficiaries, but they do not have access to the property until your death. You can revoke this deed at any time during your life.
Avoid Probate With a Comprehensive Estate Plan
If you want to protect your legacy, McCunn Law can help. We will develop a complete, legally binding estate plan that safeguards your assets for your loved ones and makes it as easy as possible for them to acquire their inheritances upon your death. Our attorneys can explain how state and federal laws apply to your situation, give you advice on selecting trustworthy executors and trustors, and select the right tools to accomplish your goals. With our help, you can ensure you have a plan in place that works for your current needs and reflects your wishes for the future. Contact us today to schedule a consultation with our team.