Probate Court is where your family will often end up after you die. Here, your assets are gathered, transferred out of your name, and distributed to your beneficiaries. While this is not always a difficult process, it can certainly become long, conflictual, and expensive for your estate and your family.
But while death is inevitable, probate is not. This article explains what probate is, and how an experienced estate planning attorney can help you avoid it. Here, you will learn:
- What probate is, when it occurs, and two strategies for avoiding it.
- How long probate can take in California, and why some people want to avoid it.
- The perils of trying to navigate the probate court system in California without an attorney.
What Is Probate And What Triggers Probate?
Probate is its own court, just like family law court, civil court, or bankruptcy court. Unlike these other courts, however, you will not be attending it. Instead, it is your estate, after your death, that has to go to court.
The probate court in California primarily handles the transfer of assets from deceased individuals to their heirs. The court also handles a few other issues, notably connected to estates and the elderly, such as press contests, will contests, guardianships, conservatorships, and more.
But for most Californians, probate is the process of transferring assets from the deceased to their heirs. Consider a house, for example. If you own a home exclusively in your name and you pass away, there is no other living person on the house’s title with the authority to transfer that home. Therefore, the probate court has to step in and transfer the title to somebody else just to give it to the beneficiaries you designated in your will!
The same occurs with bank accounts or other investment accounts if there is no beneficiary. That is the general principle and purpose of probate. Unfortunately, as it takes place in practice, there are a lot of downsides to having to go through the probate process in California.
Should I Avoid Probate Court In California If I Can?
While the purpose of probate seems simple and straightforward, it carries with it a number of complications, including four main reasons why you would want to avoid it altogether.
The first is that the probate course process is very public. Once probate is filed on an estate, anyone can look up the case, see the filings, and get information on the assets associated with probate and, thus, with your estate, family, and heirs. Probate court even requires that public notice be published.
This means a big heads up to any potential creditors, reminding them to come forward and help themselves to your estate to pay off any debts, which is the second reason to avoid it if you can. Medicare and Medi-cal are notorious, for example, for clawing back assets to pay debts accumulated during end-of-life care and treatment.
The third reason is the duration. In most busy counties of California, the probate process takes at least a year, if not longer. And that is only assuming that no one contests any part of the will or distribution and that no creditors come forward with claims. These or other issues raised during probate can add months or even years to the process. That means even in the best of circumstances, it takes a long time for the assets being distributed to reach your heirs.
The fourth and final reason is the cost.
How Much Does Probate Cost In California?
Not only will the probate do nothing to protect your estate from taxes or creditors, but simply managing the process can take time, effort, and expense. This is especially true if your family will need an attorney to guide them through the process.
Since most probate courts will require a bond to be posted, and most bond companies require an attorney to be present in order to get the bond, there is almost no way to avoid these fees.
Assuming a million-dollar estate, if an attorney has to get involved, it is going to cost somewhere between $40 to 50,000 in costs and attorney fees, which have to be paid out of the estate prior to the probate closing. Thus, overall, probate is very expensive, vulnerable, public, and perhaps worst of all, incredibly time-consuming.
How Long Does It Take To Get Through California Probate Court?
Probate is never fast, and there are dozens of different elements that contribute to its length which also makes predicting how long it will take difficult.
First, there are statutory requirements for probate, such as creditor notification periods and other waiting periods. On average, these cumulated waiting periods take at least 12 months, especially with the court’s busy schedules. Once you file for probate, you probably won’t get an initial hearing date for three months or longer.
Then, if there is any kind of conflict or court battle over who gets appointed as executor, that will only delay it further. Between hearings and petitions, you could be potentially battling over who gets appointed alone for six to twelve months.
Once someone is appointed, then there is a mandatory four-month creditor period. Then, you have to do an inventory and appraisal, complete a final accounting, and then file a petition for final distribution, which is another hearing you have to wait for.
All said and done, even if it’s done quickly and efficiently, eight to twelve months is quick. Working with an attorney to avoid it in the first place, for example, using one or more trusts, can save time, money, and heartache.
How Can I Best Avoid Probate Of My Estate After Death?
By making sure that all of your assets are properly planned and do not require probate to pass on to beneficiaries upon your death, you can get the value of your estate below the minimum $180,000 and thus avoid probate.
This can be done either through trusts or designed to pass directly to named beneficiaries, such as with bank accounts or insurance policies. That is the only way to avoid probate other than transferring the assets during your lifetime to your beneficiaries. But there are drawbacks to that as well.
If you do not plan ahead and work with an estate planning attorney, then your family will invariably have to go through probate, which will probably mean having to pay for an attorney anyway!
Can Someone Realistically Navigate The Probate Process Without An Experienced Probate Journey?
It is possible to navigate probate on your own, but it is very difficult. If you are not familiar with the court systems, filings, court appearances, and how to navigate issues with the banks, it can be very challenging. This is particularly true if ever anyone chooses to contest anything during the procedure.
Probate law and code are complex, and there are numerous court hearings to prepare for and navigate. Unless you are experienced with it, it is advisable to hire a specialized attorney to help. Even attorneys who are not used to doing probate have a hard time navigating the procedures and processes.
Probate attorneys usually only practice in these areas. Since this is what they do on a daily basis, they are very familiar with how to navigate these issues. If you are facing a probate process, the best thing you can do is contact an experienced attorney.
But you can spare your family that time and expense by working with an estate planning attorney ahead of time.
For more information on Probate Process In The State of California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (951) 262-8811 today.
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