Probate is a long, costly, and frequently confusing legal process, but an Orange County estate planning attorney can set up an estate plan for you that lets your beneficiaries avoid the probate process and makes sure that they receive their inheritances quickly and without cost.
After someone’s death, probate is the legal procedure that inventories and evaluates the assets and properties in that person’s estate, pays the outstanding debts and taxes, and transfers what remains according to the directions in the will (or according to California intestate succession laws if there’s no will.)
How is the probate process conducted in California? How can you protect your estate and your beneficiaries from probate? How will an Orange County estate planning attorney help? Keep reading this brief discussion of probate and estate planning, and you will find the answers you may need.
What Does the Probate Process Entail?
You have probably heard that the probate process should be avoided. It’s a process that ties up an estate’s property and assets for months – and for more than a full year in many cases.
Probate is also quite costly. The legal fees by themselves may decrease an estate’s value by as much as five percent. Usually in probate, the estate pays for the court costs, the attorneys’ fees, an appraiser’s fee, a personal representative’s reimbursement, and other expenses.
Probate can become even more complicated if the decedent owned assets or property in another state. For instance, if the decedent resided in Anaheim but also owned a vacation cabin in Idaho, the cabin must undergo probate in Idaho.
If privacy is one of your concerns, you should know that a probate proceeding is a formal judicial proceeding and that the entire process is part of the public record. Anyone can discover what your beneficiaries will receive. If privacy matters, probate is to be avoided.
How Can Probate Be Avoided?
Different states provide different ways to avoid probate. In California, you can prepare a living trust to avoid probate. You will need to prepare the living trust document (comparable to a last will and testament) with the advice and guidance of a Newport Beach probate lawyer.
You are the trustee of your living trust until you pass away. When you create your living trust, you must transfer the ownership of your properties to yourself as the trustee of your trust, and you must designate another person to manage the trust as your successor trustee after your death.
For the purposes of probate, any properties or assets that you transfer into your living trust then become the legal property of the trust. When the time comes, your successor trustee will transfer the assets and properties directly to your beneficiaries, without a probate court’s interference.
What Else Do Living Trusts Accomplish?
A living trust is similar to a last will and testament. In both documents, you identify the beneficiaries who will acquire your properties and assets, but a living trust does even more. It protects your properties, bank and brokerage accounts, and other assets from the probate process.
You may change or cancel a living trust whenever you choose and for any reason you choose. A California trust attorney can review your current living trust – to ensure that it is still adequate and up to date – or that attorney can prepare a living trust that protects and benefits both you and your family members for many years to come.
If you have a living trust, but if you have not reviewed or revised that trust in the last three years, if your family situation has changed (with a new child or a divorce, for example), or if your trust was prepared in a different state, have it reviewed by a Newport Beach estate planning attorney.
What Else Should You Know About Probate?
A living trust is not necessarily your only alternative to probate. For example, in California, spouses may inherit personal property and items like furniture without the probate process. For assets like vehicles and real estate that have title documents, a surviving spouse may either:
- Skip probate and file an affidavit to obtain the title to the property.
- Ask the probate court to state that the item belongs to the surviving wife or husband.
If you do not take any steps to avoid the probate process, and if your estate is modest – or even if it isn’t – it may be eligible for California’s simpler “small estate” probate process. A California probate attorney can examine the details of your estate and explain the options that are available.
What Else Should You Know About Estate Planning?
Even if you establish a living trust with an attorney’s help, that single document may not provide the full protection your loved ones and your estate require, but a Southern California estate planning attorney can help you prepare a comprehensive estate plan.
The estate plan that you and your estate planning lawyer prepare should account fully for your personal, family, and financial circumstances. It may include a trust or a will, an advance health care directive, and a durable power of attorney. If you like, your plan also may include:
- a testamentary trust for leaving an inheritance to a child, but overseen by a trustee you have chosen until the child reaches a certain age
- a special needs trust to provide – after your death – for a family member with special needs
- a charitable remainder trust, particularly if you do not have children or a spouse and you want your assets to go to a charitable organization
When Should You Contact an Estate Planning Attorney?
Let a California estate planning lawyer explain the entire scope of your estate planning alternatives and help you establish an estate plan to meet your needs and provide full protection to your assets.
Do not wait until you are forced to set up an estate plan because there is an emergency or special circumstances. While you need to start planning your estate now – because no one can predict what may happen tomorrow – estate planning in haste is inevitably poor estate planning.
You can find out more, prepare a living trust, or begin a comprehensive estate planning process by arranging at once to meet with an Orange County estate planning attorney. The right time to start planning your estate is today.