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How Is a Title Passed to New Owners Without Probate?

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: September 4, 2019

In most cases, the home is the greatest and most valuable single asset of any given estate. While some can afford to own multiple homes or perhaps even possess assets with greater value than the average home, most families prize their family house as the financial crown jewel of the house’s owner – and as […]

In most cases, the home is the greatest and most valuable single asset of any given estate. While some can afford to own multiple homes or perhaps even possess assets with greater value than the average home, most families prize their family house as the financial crown jewel of the house’s owner – and as such, most families in America are incredibly invested in what happens with their beloved home, should its owner pass away.

If it’s your name on the deed or title to your house, chances are that your children or future children (if you have none) will want to know who inherits it once you pass away. But even without children, it should interest you to know that the process of transferring property after death can be quite complex – and the larger your list of potential beneficiaries, the more complex it gets, especially with disputes and conflicts brewing.

What to Consider

Whenever someone passes away, their property must be sorted, evaluated, and properly distributed to the persons who are designated to inherit it. Without proper designation, it is up each state’s law and a little help from the courts to determine where the decedent’s belongings go next. There is no legal way you can carry your assets into the afterlife – but you have plenty of ways to make sure they pass onto the right people.

Some keywords to remember include trusts, wills, estate planning tools, and the probate process.

    • Trusts can play a major role in helping you sequester property into the ownership of a separate property with the goal of immediately transferring said property to a beneficiary once you pass away.
    • Wills help a probate court to determine what your last wishes were regarding the fate of your assets.
    • Estate planning tools represent a large tool chest of potential techniques and ways to avoid probate, minimize costs, expedite the inheritance process, manage the finances of your underaged kin, or see to it that your family is taken care of once you pass on.
    • Probate, very crucially, is something that plays a significant role whenever someone dies. In California, an estate can only be properly distributed through the probate process, unless measures are taken to minimize how much of an estate passes through probate. Probate is quite simply the process of proving a will, or in the absence of one, determining how an estate should be divided among the surviving kin of a decedent.

Why This Matters

While it is true that property will automatically transfer to the closest kin when someone passes away, and that married couples typically inherent each other’s half of all community property, the situation can often be much more complex.

For one, it is possible for both people in a marriage to pass away, and a lack of estate planning means the house goes to the next of kin. For partners with children, this is not necessarily very complex, unless they had a specific child in mind. But for childless couples, this can leave a very wide range of potential kin open to inherit.

In this example, the spouse who dies first per intestate laws passes on what they own to their loved one, who died thereafter - as such, only one of the two joined families would inherit. Unless it is impossible to prove which of the two died first, in which case the estates – and thus any joint properties – become separate and go to their respective kin.

Estate planning is designed to avoid complications and minimize time and money spent in court, first and foremost. Estate planning tools exist to avoid costly disputes and legal battles between estranged relatives. In many cases, these potential battles can cause the probate process to be unnecessarily drawn out.

How Probate in California Works

Probate in California is not as painful as it is known to be in some other states, but it isn’t the fastest process either. The more complex an estate, the more complex and tiresome the probate process.

Under a certain value, an estate can opt to go through an expedited probate process, although it’s often best to consult with an estate planning professional before attempting to do so. There are also ways to minimize probate by cutting down on the number of assets and belongings that pass-through probate, by employing beneficiary deeds, trusts, and so on.

Probate begins with a death certificate, which is presented to the courts by a probate attorney or family member. Once the probate process officially begins, an administrator or executor is chosen to do the legwork involved in cataloguing and distributing the estate. This is often the spouse or eldest child, but a third party can be chosen if no surviving kin feel ready to take on the financial and logistic challenges of probate.

From there, an estate must be properly documented. Inventory is taken, assets are valued, creditors are notified, debts are paid off, and the process of distributing the estate begins. This can often be very difficult, depending on whether the decedent left behind a will, how many beneficiaries stand to inherit from the estate, and how complex the estate is. Some assets are much harder to keep, maintain, and transfer than others. If a decedent owned property in several states, this can further complicate and delay matters.

Avoiding Probate

Passing on a house title without probate can be done through several ways. Married couples have the benefit that any property they own is typically community property, and that a spouse automatically inherits the other half of the property when their loved one passes away, provided the home is owned under a community property with right of survivorship title.

Such a title allows a person to inherit a property from their spouse without probate. If you aren’t married, or are widowed, you can pass the title onto your family without probate through a transfer-on-death clause, or a beneficiary deed – this essentially allows you to attach a beneficiary’s name to the property, such that it passes onto said beneficiary after you die.

Trusts are another option. Transferring property through a trust has the added benefit of avoiding probate, on top of giving you a wider range of options regarding the management and distribution of your estate after you pass away.

Whatever you decide to do, it’s important not to cut corners. Estate planning professionals can help you draft and finalize an estate plan that gets the job done, without leaving you open for disputes or potential problems and errors. This cannot be said for templates sold online, which lack the specificity needed in sensitive legal documents such as trust documents, deeds, and wills.

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