If estate planning is on your mind, you have likely heard of the probate process and you know it is something that is best avoided. With a carefully-crafted estate plan, it is possible to help your beneficiaries avoid this complex, expensive, and time-consuming process.
Avoiding the Probate Process
Probate is a legal process that is overseen by the Probate Court after one dies, and involves multiple steps, attorneys, and court appearances. It involves “proving” the validity of a Will, and inventorying the deceased person's property (known as the “estate”). And, if one dies without a Will, their “intestate estate” is what goes through Probate. The estate property is appraised by a court-appointed Appraiser, and all such information is public record. All outstanding debts and taxes are paid first. Whatever remains is distributed to the Will Beneficiaries; and if there is no Will - to the heirs at law according to “intestate succession” – which is the distribution outlined in the Probate Code of California for those dying without a Will. In other words, the Probate Code (intestate succession) is the Will the State has written for you, in case you leave no Will or Trust.
There are two ways Probate can be avoided.
- If you create a revocable living Trust, your assets can be transferred into the trust through a process known as “funding” the trust. Once the Trust is funded, your assets will not be subject to Probate because the Trust does not “die” – hence, does not require Probate; rather, when a Trustee dies, he/she is immediately replaced by a named successor Trustee, so there is immediate continuation of control over trust property with no need for court involvement. The successor trustee then distributes the trust property per the terms and conditions that you have specified in the Trust.
- Another option for avoiding probate is naming beneficiaries who will receive the property directly when you die. Assets like bank and brokerage accounts, retirement accounts, life insurance, and some personal property allow you to name a beneficiary, so no Probate is needed. However, some assets do not allow for beneficiary designations, which is why it is still crucial to create a Trust to own such property: real estate, business interests, digital assets (cryptocurrency), to name a few, are assets not subject to “beneficiary designation.” Moreover, while you can set the terms (ages and stages) of distribution in a Trust, payments to named beneficiaries are direct and immediate – except if a beneficiary is a minor. Minors cannot “take” their inheritance until they turn 18. The only way to “access” inheritance of a minor is to initiate yet another court process – a Guardianship of the Estate of the Minor. This is why Trusts are especially valuable to families with young children.
Our experienced legal team can help you create an estate plan that best suits your goals and needs, so your loved ones are provided for after you are gone.
Schedule a Consultation with Our Skilled Estate Planning Attorney to Get Started!
If you have concerns about what will happen to your assets and how they can reach your family after you die, now is the time to consider creating an estate plan. A trust ensures that your property is distributed according to your wishes and as smoothly/cost-efficiently as possible. At the Law Offices of Maria N. Jonsson, PC, our estate planning attorney will guide you through this important planning.
Reach out to our law office today at (424) 383-8445 to schedule a consultation.