What Even Is Probate……and Why Should I Avoid It?
If you own a home or other significant assets in California, you've probably heard someone say:
“You need a living trust so your family can avoid probate.”
The good news is that probate doesn't have to be complicated to understand. Here’s the simple version:
What Is Probate in California?
In plain English, probate is the court supervised legal process of getting property out of the name of someone who died and into the hands of the people who are supposed to receive it.
The probate process can involve:
Appointing someone to handle the estate
Identifying and valuing assets
Notifying creditors
Paying valid debts and expenses
Filing documents with the probate court
Determining who is entitled to inherit
Distributing the remaining assets to beneficiaries
Does a Will Avoid Probate in California?
No. Having a will does not automatically avoid probate in California.
This surprises a lot of people.
A will is an important estate planning document, but its primary purpose is to provide instructions about what should happen after your death. Depending on your assets and how they are owned, a probate proceeding may still be necessary to carry out those instructions.
That's one of the biggest differences between a will and a living trust.
Why Should You Avoid Probate in California?
Probate Can Be Expensive
California probate can involve court costs, professional expenses, and compensation for the attorney and personal representative.
In general, the cost is based on the value of the probate estate, without simply subtracting mortgages and other debts when determining that value.
Probate Can Take a Long Time
Probate isn't simply a matter of presenting someone's will to a judge and getting the assets.
California probate involves required notices, filings, deadlines, creditor procedures, and potentially multiple court hearings.
Even a relatively straightforward estate can take months to administer. More complicated estates can take considerably longer.
Probate Is a Court Process
Probate involves the court system, which means filings, procedures, deadlines, and less privacy than many families expect.
For many families, that additional privacy and flexibility is a major reason to create a living trust.
How Do You Avoid Probate in California?
For many California homeowners and families, a revocable living trust is an important part of a comprehensive estate plan.
Think of a living trust as a legal box.
During your lifetime, you can place appropriate assets into that box while continuing to control them.
If you become incapacitated or pass away, the person you selected as your successor trustee can step in and manage the trust according to the instructions you've already established.
This can allow properly funded trust assets to be administered without traditional probate.
Having a Living Trust Isn't Enough
This is one of the most important things we teach our clients at ARK Law Estate Planning:
Creating a trust and funding a trust are two different things.
You could have a beautifully drafted living trust sitting in a binder at home, but if an asset that should have been transferred to the trust was never actually transferred, that can create problems later.
For example, when appropriate, California real estate may need to be transferred into the trust through a properly prepared and recorded deed.
Bank accounts, investment accounts, business interests, retirement accounts, and life insurance may require different strategies.
That's why we don't believe estate planning should simply mean handing someone a binder full of documents.
The documents have to work with your assets.
Does Everything Go Into a Living Trust?
No.
This is another common misconception.
Different types of assets require different planning.
Depending on your circumstances, an asset might:
Be owned by your living trust
Name your trust as a beneficiary
Name an individual beneficiary
Transfer through another ownership arrangement
Retirement accounts, life insurance, real estate, bank accounts, investment accounts, and business interests should not automatically be treated the same way.
That’s one of the benefits of working with ARK Law Estate Planning. An experienced California estate planning attorney will guide you through how each of your assets should be handled and explain the process in a simple, easy to understand way.
A California Estate Plan Should Do More Than Avoid Probate
We talk a lot about avoiding probate, but that's only one part of good estate planning.
A comprehensive estate plan should also answer questions like:
Who manages your finances if you become incapacitated?
Who makes medical decisions if you can't?
Who would care for your minor children?
Who takes over as trustee?
When should your children receive their inheritance?
What happens if one of your beneficiaries dies before you?
What happens if your first-choice trustee can't serve?
How should your real estate be handled?
What happens to your business interests?
Who receives your assets if your immediate family isn't living?
Those decisions can be just as important as avoiding probate.
Do I Need a Living Trust in California?
If you own a home in California, have minor children, own significant assets, own a business, or simply want more control over what happens if you become incapacitated or pass away, it's worth speaking with an ARK Law estate planning attorney about whether a living trust makes sense for you.
Talk With a California Estate Planning Attorney
At ARK Law Estate Planning, we help individuals and families throughout San Diego and the rest of California create comprehensive estate plans built around their families, assets, and wishes.
We focus on making estate planning understandable.
We'll explain what your documents actually do, help you think through the decisions that matter, and address how your assets fit into the overall plan.
Because estate planning isn't about having a binder sitting on a shelf.
It's about having a plan that actually works when your family needs it.
ARK Law Estate Planning provides this article for general educational purposes only. It is not legal advice, and reading this article does not create an attorney client relationship.
