Probate in Southern California

When a person dies, their estate is distributed to legal heirs and beneficiaries. Probate involves the legal process in which a decedent’s estate is distributed. If there is an asset in the decedent’s name alone that does not have a named beneficiary, then the probate process may be the only way to gain access to that asset.

Even if there is a trust or will, probate isn’t necessarily avoided. For example, there could be problems with the trust that cause it to have to go through probate. This situation occurs when there is an asset that requires a title transfer. A will alone usually simply identifies beneficiaries, and may not actually help avoid a probate proceeding.

An example of a title transfer that triggers the need for a probate proceeding is when a married couple resides in a home together, but only the decedent has title. If the decedent attempts to leave the home to someone other than the spouse, probate ensues.

When someone dies in California without a will, referred to as intestate, a probate process is usually required unless the decedent had engaged in other forms of careful planning, which is typically not likely.

Given the complexities and length of time associated with probate, it is typically in a beneficiary’s best interest to avoid it altogether. Avoiding probate helps ensure that estate administration is handled according to the decedent’s wishes, skipping the probate process can save significant time and money.

While relatively small estates valued at under $184,500 can either avoid probate altogether or go through an expedited process, larger estates need additional planning to avoid probate. Fortunately, there are multiple options to accomplish this goal.

Payable-on-Death and Transfer-on-Death Clauses

Some assets and accounts can be set up to include payable-on-death (POD) or transfer-on-death (TOD) clauses. When this happens, a beneficiary receives access to the asset with little to no follow-up paperwork (other than providing a death certificate). Bank accounts and IRAs are examples of accounts that can include these clauses.

Establishing a living trust can provide several advantages, including avoiding probate.

A living trust is similar to a will, but the person can assign themselves as the trustee and maintain access and control of the assets while they are still alive. Upon passing, a successor trustee receives control over the trust.

Assets in a living trust typically do not go through probate in California and can include:

• Real estate
• Vehicles
• Bank accounts
• Stocks

The law does not require you to hire a probate attorney, but it can save you time, money, and mountains of stress. While some areas of law, like small claims or family law, are somewhat easier to navigate, probate cases are very confusing (even to attorneys who don’t handle probate!) There are several legal regulations to follow, and the process is often exceptionally lengthy. In California, the average length of probate is over a year. We do our best to shorten the process as much as possible for our clients.

The amount of work involved in the probate process is overwhelming without a legal background, and probate attorneys are more adept at moving the process forward efficiently without mistakes or omissions that can further delay or halt the process.