A common first question we get from clients is, “What will happen to my property and assets when I die?” If you have just lost a loved one, you may have similar questions about their estate, especially if your loved one died without an estate plan in place. We’ve all heard of an estate going through “probate” but what does that mean?
Probate is the process through which a probate court finalizes a deceased person’s estate. The court can collect and manage the assets, determine what debts should be paid, and distribute the assets of the deceased’s estate according to their will or, if they died without a will, according to California’s laws of intestate succession. The process can be long and more expensive, so most people prefer to avoid probate if they can.
Probate requires that a court supervise the distribution of assets. Because it is a court-administered process, probate can often require the assistance of an attorney. An executor must also be appointed to represent the estate and to carry out the wishes of the deceased. Both the attorney and the executor are entitled to separate payment or fees from the estate. While the fees are set by law according to the size of the estate, beginning at 4% of the first $100,000 of the estate and gradually decreasing to 1% for $1 million to $2.5 million. Obviously, for both small and large estates, it would be beneficial to avoid these fees.
When dealing with a probate court, the process can be lengthy. Your attorney and the executor of the estate will need to file forms and details of the estate and will. Moreover, because the court must oversee some portions of the process, transferring property according to a will through a probate court can take anywhere from seven months to two years, with seven months being the minimum in California. During that time, you may not be able to sell property that is part of the estate or the heirs may not be able to take advantage of the proceeds of a sale.
- Loss of Privacy and Control:
Probate filings are generally open to the public. Both the deceased and the heirs may have information about their financial holdings and inheritance become public record. You will also lose some control over the distribution of your estate. A court will attempt to make determinations about your wishes for the distribution of your estate, but they may not always be entirely accurate.
With proper planning, it’s usually possible to avoid probate court. For some assets and property, a line of succession is clear. If your property or assets are owned in joint tenancy, meaning you own a home or a retirement account with your spouse; as survivorship community property; or are part of a living trust, those assets won’t need to go through probate. Similarly, if you have accounts where a payable-on-death beneficiary is named, or assets in a revocable living trust, those assets are exempt from probate as well. If the estate value is under $100,000, it may also be possible to avoid full probate.
Planning in advance is key if you wish to avoid having your estate go through the probate court. With gifts, joint ownership of property, trusts, beneficiary deeds, payable on death accounts, and other strategies, it is possible to plan your estate to protect your assets for your family and heirs. I have more than two decades of experience helping families protect their assets for the future. Call me at 714-639-1990 or send me an email to schedule a consultation.