You have no doubt heard of “probate court” or the “probate process,” but unless you have personally been involved in a probate proceeding or have worked in a field that is connected to the probate world, probate can be a confusing concept. Essentially, the job of a California probate court is to oversee the handling of an estate’s affairs after a person dies, which includes:
identifying the legally valid will that disposes of the person’s assets
identifying the proper beneficiaries in accord with the will
if there is no will or if some property is not included in the will, incorporating state intestacy law to identify the proper beneficiaries
ensuring that all beneficiaries receive the property owed to them
paying off taxes and creditors
responding to any arguments over the validity of the will, undue influence, and creditor claims
If this all sounds complicated and expensive, it definitely can be, causing depletions to the estate, meaning less funds and long delays for beneficiaries. But do all estates have to go to probate in California? The short answer is no.
When an Estate Can Avoid Probate
First off, if there is less than $150,000 in an estate, then it will not go to probate court. Obviously, the vast majority of us have no idea when we are going to pass, much less how much property will be in our estate at that time or its valuation, so this is not a good planning strategy for avoiding probate.
Second, if there is a surviving spouse, then it is possible in some cases that an estate may not go into probate. In California, a person’s community property automatically transfers to his or her surviving spouse. Separate property is another story, however. If there is no will and no children, then that separate property may also pass to the spouse.
Finally, there are a number of estate planning instruments which can be used to pass property outside of probate. These include living trusts, testamentary trusts, life insurance policies, and property held in joint title. Proper utilization of these instruments can result in property transferring automatically to another party. If all property passes through such instruments, probate will not be necessary, and, at the very least, the amount of property that does go to probate can be minimized in order to simplify the probate process.
An estate planning professional can provide further guidance on how you can take steps now to avoid the probate process in the future and preserve assets for your loved ones.
Work with a Pasadena Probate Attorney
Christopher B. Johnson is an estate planning attorney in Pasadena, CA who has helped thousands of individuals and families over the past 18 years in creating and reaching their estate planning objectives as well as in navigating the probate process in California to achieve positive outcomes. Schedule a consultation with him today to discuss your estate planning and/or probate goals.