In the aftermath of a loved one passing, dealing with legal matters can take its toll on the affected family. One common question that is asked is “Do all wills have to go through probate in California?” The answer, however, is not an easy yes or no. There are some intricacies when it comes to probate in California. There are some situations where probate is necessary and some other situations where it can be avoided. A Temecula probate attorney can help you in your probate process.
Understanding California Wills
A last will and testament is recommended so your family and assets are protected in the event of your death. You can leave your property to people or organizations, name guardians for minors, and name an executor to handle your will’s terms. Those without a will are subject to state laws regarding their property.
In California, property is given to the closest relatives, typically starting with the spouse and children. If the deceased does not have a spouse or children, the property will go to their parents or grandchildren. The state will go down the list of relatives until they find someone who can accept your property. If you do not have any living relatives, your property goes to the state.
In California, the requirements for creating a will include being at least 18 years of age and of “sound mind.” A will must be on paper, not in electronic form. A will typically includes what property you’d like to include, who will inherit the property, the executor for the estate, a guardian for your children, and someone to manage any property left to your children.
Understanding Probate
Probate is the legal process where a deceased person’s estate is administered and distributed. In California, this process is overseen by the probate court. When it comes to wills, probate court is usually responsible for validating the will, appointing an executor to manage the estate’s administration, supervise the estate administration, resolve disputes, and ensure that the will adheres to all legal requirements.
Probate is usually required if the deceased person’s assets were solely in their name (joint assets may not require probate). These assets include real estate, bank accounts, vehicles, and other personal belongings. If the total value of the assets exceeds a certain amount as determined by the state, generally it must go to probate. If the assets are not able to go through a simple transfer, the will will have to go through a formal process in probate court.
Assets That Don’t Require Probate
In California, probate is common for wills, but not all wills are required to go through probate. Some people prefer to avoid probate because it can be an extensive and costly process. There are certain situations where probate is avoidable.
- You have a living trust. A living trust can be used for any asset that you possess. It is, in essence, a substitute for a will. Some people prefer a trust over a will because it is private, as opposed to a will, which becomes public, and it is typically a quicker process and less expensive than going through probate court for a will.
- You have joint ownership of your assets. Usually, with assets that have joint owners, ownership is automatically transferred to the other owner in the event of the death of one of the owners. This is referred to as the right of survivorship. Therefore, probate is not required.
- You have transfer on death. There are many transfer-on-death options. You can transfer stocks and bonds through transfer on death. With this option, you can name a person to inherit the account after death. This is a common option for brokerage accounts. Transfer-on-death options always exist for real estate as well. This is called a beneficiary deed. You can make changes to the deed at any time, and the beneficiary will not inherit any rights until after your death. Similarly, you can have a transfer on death plan for vehicles as well. Probate court will not be required for these options.
- Payable on death for bank accounts. Your account will still operate as yours, and you can spend however you wish while you are alive. The beneficiary will have no rights to it until after your death. They can claim the money directly through your bank.
FAQs
Q: How Do I Avoid Probate in California?
A: There are a few ways to avoid probate in California. To avoid probate, you can establish a living trust, hold joint property, designate beneficiaries for your accounts, or even make lifetime gifts to reduce the value of your estate so it is below the financial amount that is required for probate.
Q: What Happens If You Don’t Probate a Will in California?
A: If you don’t probate a will in California, a few things could happen. Your assets could be inaccessible to your family, or remain in limbo. There are legal ramifications that could arise between family members, heirs, and creditors. Ultimately, your wishes are at risk of not being honored, which can lead to disputes among those involved.
Q: What Triggers Probate in California?
A: In California, probate is triggered when a deceased person owns assets solely in their name and the total amount of those assets exceeds a certain amount as declared by the state. This amount changes over time to remain up-to-date on the current value of the dollar. Common triggers for probate include real estate, personal property, and financial accounts held in the deceased person’s name.
Q: What is Exempt From Probate in California?
A: There are certain assets that are exempt from probate in California. These include assets held in a living trust, property held jointly, life insurance policies with named beneficiaries, retirement accounts with named beneficiaries, transfer-on-death accounts, and payable-on-death accounts. These options can be established before you die, and the beneficiaries typically have no access until you pass away.
Contact Quinn & Dworakowski, LLP
Taking proactive steps now can help protect your assets and your family in the long run. If you need assistance with your estate planning needs, contact us today for more information.
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