You've heard that you should avoid probate. Below is the why it's important to avoid probate and how to avoid probate.
Probate is a legal process that takes place after someone dies. It includes:
- proving in court that a deceased person's will is valid
- identifying and inventorying the deceased person's assets
- having the property appraised
- paying debts and taxes, and
- distributing the remaining property as the will (or state law, if there is no will) directs
Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property.
Probate fees are set in statute and the court awards fees at the end of the probate process. Probate fees in California are a percentage of the gross value of the estate.
After death, the person named in a will as executor, or if you die without a will, the person appointed by a judge files papers in the local county probate court. The executor proves the validity of the will and presents the court with lists of your property, debts, and who is to inherit what you've left. At this point relatives and creditors are notified of your death usually through publication.
The executor must find, secure, and manage your assets during the probate process, which may take 1-2 years. Depending on the contents of your will and the amount of debt, the executor may decide whether or not to sell your real estate, securities, or other property.
No. In California, for example, you can pass up to $166,250 (as of 2020) of property without probate, and there's a simple transfer procedure for any property left to a surviving spouse.
Also, property that passes outside of your will that may include joint tenancy or a trust is not subject to probate.
The executor named in your will generally takes the job. If no will exists or if the will fails to name an executor, the probate court names someone (called an administrator) to handle the process.
Yes. A revocable trust defeats probate, but steps need to happen regarding title to assets. Call us today to get started.