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For most individuals, opening probate in California is not a delightful or even pleasant experience. California does not have neither a streamlined probate process for real estate valued more than $20,000 (which is nearly every home in this state) nor beneficiary deeds. This is why in California, it is very important to have your real estate holdings placed into a Living Trust if you wish to avoid probate. For many, the goal of estate planning is probate avoidance.


Probate is the court involved process to transfer title of a loved one who has died to his or her beneficiaries or heirs. It's not all that cut and dry to gather the information necessary to open an estate with the court. Sometimes there's paperwork to find, information to collect and court hurdles to clear before Letters Testamentary or Letters of Administration are issued by the court.

Letters Testamentary or Letters of Administration are essentially the court's way of letting everyone know that the estate has been opened and a personal representative has been appointed to manage the estate. Once Letters have been issued, the personal representative may be in a position to sell real estate or manage other affairs on behalf of the estate. It takes about 60 days on average to get the court to issued these Letters. Sometimes the court is busy, sometimes there is an issue that needs to be cleared or something else comes up that can delay this initial process.

HOW TO AVOID PROBATE 

The first way is to ensure that all of your contract based accounts like bank accounts, life insurance policies, retirement accounts have beneficiaries named.
          * Call your financial institutions and ask if you have beneficiaries for your accounts. Review the beneficiaries and update them if needed. Upon your death, the financial institutions will transfer the assets directly to your beneficiaries so long as your beneficiaries follow their processing requirements.

Second, is to ensure that all of your assets that do not have a beneficiary named are in a trust. A trust is a legal fiction created for the private management of your assets in accordance to your wishes. 
          * If the Living Trust is properly created and funded, it will avoid probate as the successor trustee is able to privately manage your assets in the event of your passing.

The third way involves any assets in the aggregate worth less than $100,000 excluding real estate.  Let's say you forgot about that credit union savings account with your former employer that has $4,000 in it. Since all of your other assets are avoiding  probate you can avail yourself to California's small estate affidavit procedure. This is a non-court procedure that allows you to request the financial institution to transfer the asset by providing a certified copy of the death certificate along with an affidavit following the requirements of the California Probate Section Code.

Probate is the process by which legal title of property is transferred from the Decedent’s estate to his or her beneficiaries. If a person dies with a will, which is called testate, the probate court determines if the will is valid, hears any objections to the will, orders that creditors be notified and paid and supervises the process to assure that property remaining is distributed in accordance with the terms and conditions of the will. If the will nominates an executor, the court will appoint that person to act as executor of the estate barring any objections. If a person dies without a will, which is called intestate, the probate court appoints a person called an administrator to receive all claims against the estate, pay creditors and then distribute all remaining property in accordance with the laws of the state. 

The major difference between dying testate and dying intestate is that an intestate estate is distributed to beneficiaries in accordance with the distribution plan established by state law; a testate estate (after payment of debts, taxes and costs of administration) is distributed in accordance with the instructions provided by the decedent in his or her will.

In California, the typical cost to probate an estate based on the following formula determined by the value of the gross estate.  Both compensation for serving as personal representative and attorney’s compensation for serving as probate counsel will be set by the court toward the end of the administration of the estate. The California Probate Code sets forth a statutory compensation schedule for the computation of compensation payable to estate representatives and to attorneys in connection with “ordinary services” rendered during estate administration. That compensation schedule, based on the size of the estate probated, is as follows:

4%  on the first  $100,000
3%  on the next  $100,000
2%  on the next  $800,000
1%  on the next  $9,000,000
1/2%  on the next  $15,000,000
“reasonable” compensation on the excess over $25,000,000 Additionally, probate can tie up the property and other estate assets for months and sometimes even more than a year.

If you own real estate in California and think that having a Will will avoid probating your estate when you pass away, you are likely to be mistaken and misinformed.

Generally, if you (as an unmarried person) own your home or rental property in your name alone (not held in joint tenancy with anyone) or as tenants in common with others, your interest in the home or rental property will go through probate.

A Will or no Will -- Probate Still Happens.

Unless you have less than $100,000 in assets requiring probate you can use a Small Estate Affidavit procedure thereby avoiding probate. Seek the advice of an estate planning attorney if probate avoidance is your goal.

Many folks own property out of state. It could be a second home, a vacation home, a timeshare or just a piece of land. If you have not placed your out of state property into your Living Trust, then probate will have to be opened in the state where the property was located.

If you are a California resident when you pass away and own property in Las Vegas. Probate may or may not have to be opened in California, but it will certainly have to be opened in Nevada.

Probate is a process of changing title to the proper heirs upon the death of an individual who dies with or without a Will.

So, think of it this way: the basic probate rule is that a court in one state cannot affect title to real property in another state. Thus, if the decedent owned a piece of real estate in another state in which they lived in, then some sort of probate proceeding is likely necessary in the state the real property is located in.

Each state also has different rules regarding probate.

The easiest way to avoid this? Set up a Living Trust in the state you live in and transfer title to all of your property into your Living Trust.

If you own a home, you may be wondering how to avoid probate.

Probate is a court procedure to determine who your heirs are at the time you pass away and transfer title of your assets to these heirs. It takes usually a year, if not more to probate your assets.

If you have a Will, your estate will still get probated.  This is because a Will must be "proved." Proving a Will in plain English means to verify that it was indeed your last Will and that you had capacity when it was prepared.  Suffice to say, the laws indicate that forgery of Wills is more commonplace than we think.

  1. Holding title of your home in your Living Trust, or
  2. Holding title of your home in Joint Tenancy with Right of Survivorship with your heir

HOW TO AVOID PROBATE 

  1. Holding title of your home in your Living Trust, or
  2. Holding title of your home in Joint Tenancy with Right of Survivorship with your heir



 Ensure that all of your contract based accounts like bank accounts, life insurance policies, retirement accounts have beneficiaries named.
          * Call your financial institutions and ask if you have beneficiaries for your accounts. Review the beneficiaries and update them if needed. Upon your death, the financial institutions will transfer the assets directly to your beneficiaries so long as your beneficiaries follow their processing requirements.

Second, is to ensure that all of your assets that do not have a beneficiary named are in a trust. A trust is a legal fiction created for the private management of your assets in accordance to your wishes. 
          * If the Living Trust is properly created and funded, it will avoid probate as the successor trustee is able to privately manage your assets in the event of your passing.

The third way involves any assets in the aggregate worth less than $100,000 excluding real estate.  Let's say you forgot about that credit union savings account with your former employer that has $4,000 in it. Since all of your other assets are avoiding  probate you can avail yourself to California's small estate affidavit procedure. This is a non-court procedure that allows you to request the financial institution to transfer the asset by providing a certified copy of the death certificate along with an affidavit following the requirements of the California Section Code.

If you own your home in Joint Tenancy, then you are giving up control of your home. The person who is on title with you actually owns your home with you. You will need that person's consent to sell or refinance your home. And when you sell, the person is entitled to half of the proceeds of the sale. Further, the person can force you to sell your home through a court process called a partition lawsuit. And, moreover, your home may be subject to this person's creditors.


A Living Trust is a terrific way to maintain control of your home and still decide who should get your home when you pass away.  See your attorney for more information about Living Trusts
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