Is the Probate Process Mandatory?

  • Posted on: Nov 18 2022
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Probate is a legal process during which a court will look at a decedent’s estate and how his or her assets are to be distributed. During probate the court will look to validate a will (if there is one), and will also appoint an executor or, an administrator if there is no will. This appointed individual is responsible for paying any remaining liabilities and creditors, and of distributing the remaining assets, such as real estate, bank accounts, and financial investments to beneficiaries. 

Why Would Someone Want to Avoid Probate?

While the probate process can be beneficial in certain situations, it is generally not preferable. This is for a few different reasons. When a will goes through probate it becomes public record, which eliminates oft-desired privacy, it can cost a lot of money, and it can take a lot of time, which delays when beneficiaries are able to receive assets. Although California usually requires probate, there are specific circumstances under which it can be avoided.

1. If an Asset is Held in Joint Tenancy

When someone owns an asset in joint tenancy it means that the asset belongs to more than one person. Therefore, if an asset is held in joint tenancy at the time that someone passes, that asset by its nature will pass to the other joint tenant. This holds true for financial and real estate assets.

2. If Real Estate is Held as Community Property

Community property is property that is owned jointly by a married couple. Therefore, when someone has real estate held as community property at the time of their passing, the property will simply pass to their spouse. It will not go through the probate process. 

3. If the Financial Asset Names a Beneficiary

When the person who passes had a financial asset, such as a brokerage account or bank account that names a beneficiary, that financial asset will not be subject to probate. Instead, it will go to the person named.

4. If the Assets Are Held in a Trust

A commonly used method for keeping assets out of probate is if they are held in a trust. Any assets held in a trust (with the trust as the owner of the asset) are not subject to the probate process. It’s important however, to note that not all assets can be placed in a trust. Assets such as health savings accounts, and retirement assets cannot be included. But if you name someone as a beneficiary of these assets, they can still avoid probate.

Avoiding Probate Through Your Estate Plan

Put simply, you could be able to avoid probate entirely by placing all of your assets allowed into a trust and leaving the remaining assets with a named beneficiary.

Still, you should be aware that because states have different probate processes, you must repeat the process in any state in which you have property. Since this can cost more in both time and money, a proper estate plan can often prove key. 

The Law Offices of Brian L. Fox, APLC Help Those Who Are Looking to Form a Business

When you pass you want to rest easy in knowing that your loved ones will not only receive the assets you leave for them, but will also be able to properly mourn you without the added costs and stresses of the probate process. Luckily, you can establish an estate plan that helps you to do just that. That’s why it is helpful to consult with a knowledgeable and experienced California Estate Planning Attorney.

At the Law Offices of Brian L. Fox, APLC, we know how important it is to protect your assets and the well-being of your loved ones. We will help you to create a comprehensive estate plan to protect your wishes. To learn more or to schedule a free consultation, contact us today!

Posted in: Estate Planning, Probate/Estate Administration