Can I Avoid Probate in California? 2024

Probate involves a lengthy legal process that validates a person’s will after their passing. Proceedings require lawyers and court appearances to distribute the deceased’s assets. Probate generally includes a waiting period before heirs can receive their inheritances and can come with significant court fees. So, you might be wondering, “How can I avoid probate in California?”

Probate may be required if titles remain in the deceased’s name or if outstanding debts still need to be paid. There are also complex cases, such as instances of multiple beneficiaries and noteworthy assets being distributed, but careful planning makes it possible to avoid probate in California.

Why You Should Avoid Probate

Avoiding probate can be beneficial in many ways.

• Time. Probate proceedings can take up to two years to complete. This means that the beneficiaries must wait until the entire legal process has concluded before they can receive their inheritance.
• Cost. The fees associated with probate can be hefty, depending on the value of the deceased’s assets. This can range from 3-7% of the total estate’s worth. Probate also brings attorney fees, court filing costs, executor costs, publication fees, and bond charges.
• Privacy. Probate records are filed publicly, which means that anyone can access it. Anyone would be able to read your will, notices to creditors and beneficiaries, and estate descriptions. This can make you vulnerable to identity theft or attract attention from solicitors and creditors.
• Emotional impact. Dealing with lengthy legal matters while navigating grief can really take a toll on a person. There’s also the possibility that there could be familial disputes among family members over inheritance distribution in probate, which could cause additional overwhelm.

Ways to Avoid Probate in California

Considering the amount of time and money you would spend on probate proceedings, the lack of privacy, and the emotional toll it can take, avoiding this process altogether can help your family through an already difficult time.

Consider the following strategies to avoid probate:

• Create a living trust. A trust document names a trustee who will manage your assets after your passing. Transferring your assets into a trust keeps it from being considered part of your probate estate. The trustee can then distribute your assets to beneficiaries directly without needing to go to court.
• Joint tenacity. Most common among spouses, this option allows all assets to transfer to a survivor after your passing. In California, you can also opt for community property with the right of survivorship. This agreement states that all assets are shared equally by a married couple and therefore transfer to the surviving spouse upon your death.
• Name beneficiaries. Specifically, naming beneficiaries can ensure that assets pass to named individuals directly without needing to go through probate. You can name beneficiaries on life insurance policies, transfer-on-death (TOD) securities, payable-on-death (POD) accounts, and retirement accounts.
• Small estate affidavit. In California, if real estate is valued at $184,500 or less, you do not necessarily need to go to probate. This amount changes periodically due to cost-of-living increases.
• Revocable Transfer on Death Deed (TODD). Specifically involving real estate in California, a TODD allows you to name a beneficiary who will inherit the property after your passing without requiring probate. However, this process comes with a very specific set of rules and does not apply to more complex estates and situations.

Considerations

It can be difficult to process life after the passing of a loved one. Navigating inheritance issues and the associated legal proceedings can be tricky. It’s important to seek legal advice from a trusted estate attorney to help simplify this process after your passing. A probate and estate lawyer can help you determine a strategy that fits your situation.

Be sure to update your plans regularly, especially after significant life changes. Keep in mind that avoiding probate does not affect estate taxation.

FAQs

Q: How Much Does an Estate Have to Be to Avoid Probate in California?

A: In California, estates totaling less than $184,500 can avoid probate. A small estate affidavit is a less complicated process for estates valued at less than $166,250. You can determine your estate’s value by taking an inventory of your personal property and real estate. Be sure to add life insurance and retirement benefits to find this figure.

Q: What Is Exempt From Probate in California?

A: Assets that are exempt from probate in California include those in joint tenacity, revocable living trusts, and POD accounts, such as retirement accounts, bank accounts, and insurance policies. A manufactured home or mobile home on rented land also does not count toward probate. Life insurance policies involving no specific beneficiary, an unpaid salary, and mortgages and debts are also exempt from probate in California.

Q: When Can You Avoid Probate in California?

A: Consider creating a living trust so that your assets transfer directly to a named heir upon your passing. Joint tenacity means that assets are shared with another person, giving the survivor sole ownership when you die. Other options to avoid probate include POD accounts, TOD deeds, TOD securities, and small estate petitions, which help you avoid probate if your total estate values are under $184,500.

Q: Can Property Be Transferred Without Probate in California?

A: Yes! You can create a transfer on death (TOD) deed or beneficiary deed, which allows property to transfer to a designated beneficiary without needing to go through probate. This requires signing the deed, having two non-beneficiary adults witness the signing, and getting your signature notarized. The deed must be recorded with the county clerk within 60 days of its notarization.

Contact a Law Firm That Can Help

It can be a challenge to navigate the probate process after the loss of a loved one. If you’re dealing with grief and a complex estate division, contact a knowledgeable probate and estate lawyer to guide you through the upcoming legal proceedings.

If you’ve been considering avoiding probate in California, contact the experienced team at Hinojosa & Forer LLP to walk you through the process of preparing for a smooth estate division after your own passing and keep your family from having to go through the probate process.