Probate

If you die with any property titled in your name, there often must be a probate process to manage and ultimately distribute that property. Probate is the state's legal procedure for handling two major functions for your estate. (1) Identification of the rightful heirs to the estate and the share size that each heir will receive; and (2) transferring legal title to the property out of the deceased person's name and into the name of the heirs. Having a will drawn up in advance of your death will take care of the first function, identification of the rightful heirs and their share. With no valid will for your estate the state will use its own formula for determining heirs and their share. But even with a will, the re-titling of your property still must be handled through a court administered probate procedure. When someone is dead the only way that their property can be legally re-titled in the heirs' names is by a court order in a court supervised process.

Avoiding probate is desirable because it can be a time consuming and expensive process. Reliable estimates are that on a national average probate costs run from 6% to 10% of the value of the estate. This means that an estate worth only $200,000 could cost $12,000 to $20,000 to probate. These costs are based on the fair market value of the property, and not on just the net worth or equity. In some cases probate ends up in litigation that drags on for years. Frequently it leads to family battles, and it often causes or allows the decedent's wishes to be ignored. In addition, probate procedures are all made public, causing family privacy to be lost.

One common and effective way to avoid probate is through the use of a living trust or a life estate trust. Think of the trust as a bridge that will allow a trustee to haul your assets safely across the intestacy chasm to your heirs on the other side. The way a trust avoids probate is by titling your property in the name of the trust before your death. You have complete control of the property during your life, but the trust is considered to be the legal owner of the property for title transfer purposes. Upon your death a trustee that you pre-selected will simply handle the transfers or payments to your heirs that you specified in the trust. You have a great deal of flexibility in specifying the details of these payments and transfer. Although there are some exceptions, after your death, the trustee can usually handle everything quickly and simply, with less Attorney's Fees, without court supervision, and avoiding certain costs and delays.

Small estate exception - In addition, in California, there is a procedure for estates not exceeding $100,000 to avoid probate. This section may be used to by the heirs to (1) collect money due the decedent; (2) receive decedent's tangible personal property; (3) have transferred any "evidence of a debt, obligation, interest, right in security, or chose in action") belonging to the decedent. This procedure is limited to personal property and if the decedent has an interest in real property (which wasn't held in joint tenancy), this section may not be utilized to clear title to real property. In determining the $100,000 limit, there are a number of statutory exclusions which may be applicable. You should consult with your attorney to see if you qualify for this procedure.

Spousal set-asides' - Community, quasi-community and separate property passing to a surviving spouse are all eligible for a spousal set-aside. Thus, probate administration may also be completely avoided where the surviving spouse succeeds outright to a decedent's entire estate.