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What Is Probate?
Probate is the process of distributing assets from someone’s estate after they pass away, and it is handled through probate court. The estate’s owner is known legally as the decedent. The probate process involves ensuring any remaining debts are addressed before assets are distributed.
California has several laws related to how an estate is handled once its original owner passes. Probate is required when the decedent was a resident of California, owned property in the state, and wasn’t eligible for any exemptions. Probate may be required for estates that either have a will or don’t. There’s a simplified probate procedure for estates that are valued at roughly under $180,000 (that total can change, so consult with an attorney to find the current value limit).
What Happens When Someone Dies Without a Will?
Dying without a will is legally called dying intestate. In California, estates with no will or other estate planning mechanisms must follow the laws of intestate succession. That means the probate court will determine who receives any existing assets and how much of them.
This could mean the assets will go to people the decedent wouldn’t have chosen as heirs. For example, the line of succession focuses on surviving spouses or registered domestic partners, children, parents, siblings and their descendants, grandparents and their descendants, and any other distant relatives. The estate goes to the state if none of these can be found.
Suppose someone prefers that their children or siblings don’t receive any assets for various reasons (fallings-out, knowledge that someone is financially irresponsible or suffers from addictions, etc.). In that case, the only way to ensure that they aren’t awarded assets is to have an estate plan, including a will. Estate planning is also necessary if the estate’s owner wants to leave assets to people outside the family or to organizations such as nonprofits. To safeguard how your assets are handled, it’s vital to work with an experienced estate planning and probate attorney.
Another crucial potential outcome of dying intestate involves minor children. A will is the only legal tool for assigning guardianship. If no will exists to name guardians, the court will assign guardianship of any surviving minor children.
Is it Possible to Avoid Going Through Probate in California if There’s No Will?
An estate without a will may be able to avoid probate in some circumstances. Some of those circumstances include:
- Assets that have been assigned a beneficiary as payable on death (POD) or transferable on death (TOD). These can be a variety of financial and bank accounts, and they pass directly to the named beneficiary when the original owner is deceased.
- Assets in certain trusts (more on this below).
- Assets with joint ownership.
- Assets owned by spouses as community property with rights of survivorship.
- Vehicles and boats registered in California.
- Manufactured or mobile homes as long as they’re on rental grounds.
What Can Be Used for Estate Planning Other Than a Will?
Not every estate needs a will. A will usually have to go through probate, which can be time-consuming and costly. What’s more, probate is a public process, so anyone can access the details of the estate and who the beneficiaries are. Those are among the primary reasons people want to consider other types of estate plans that allow them to bypass the probate process.
Setting up a trust is one popular form of estate planning that allows the owner to avoid probate. A trust is a legal structure. The estate’s owner moves their assets into the trust’s ownership. Beneficiaries are named in the trust, and depending on the type of trust (there are several), the assets are transferred to the beneficiary after the decedent’s death. The trust doesn’t have to go through probate, which means it may transfer assets more quickly and at a lower cost than a will. It’s also private, so the estate details aren’t available to the public. Yet another factor to consider is that while California doesn’t have an estate tax, there is one at the federal level.
Some trusts may help minimize the federal estate tax. It’s vital to work with an experienced estate planning attorney to determine what that estate tax might be and if a trust can help reduce it.
There are many variations on trusts, and they usually fall within one of two categories.
Revocable trusts. As the name implies, these can be changed or revoked while the estate’s owner is still alive and mentally sound. This offers flexibility for unforeseen future events, including things such as falling out with family members who are initially named as beneficiaries or a change in fortunes for the owner. However, these trusts aren’t safe from lawsuits or creditors.
Irrevocable trusts. Once these are finalized, they can’t be changed or canceled. However, they may offer more tax benefits than revocable trusts. They’re also safe from creditors or lawsuits.
What Should I Do if I Need Help with Probate Court?
Call Yonano Law Offices, P.C. at 916-894-8790 to get started on your case. Probate can be complex and time-consuming. The longer it takes to move an estate through probate, the more costs may be involved, which may result in the estate being lower in value. Our team of experienced, knowledgeable probate attorneys understands what’s at stake and will work with you to make the probate process as smooth as possible. Call us today to learn how.
