Your estate plan allows you to decide how your property will be managed during your life and transferred after your death. If you are hoping to learn about how to avoid probate in California, an attorney can help you identify which assets might otherwise require probate and create a plan for transferring them outside that process. Depending on your property, relationships, and instructions, that plan may combine a living trust, survivorship ownership, beneficiary designations, or a transfer-on-death deed.
Pakpour Banks LLP helps individuals and families create California estate plans that reflect how they want their property managed and transferred. Our boutique firm serves the Sacramento area and Central Valley in estate planning and probate matters. We can help you select and coordinate wills and trusts, deeds, and beneficiary designations, prepare the documents your plan requires, and explain the steps you must take to connect each asset to its intended transfer method.
What Is Probate?
Probate is the court-supervised process for settling someone’s financial affairs and transferring their property after death. Probate begins when someone files a formal written request asking a California Superior Court to open the estate and appoint a personal representative. “Personal representative” is the general term for the person the court authorizes to administer the estate. If a will names someone for that role, the court may appoint that person as executor. When no executor serves, the court appoints an administrator.
Once appointed, the personal representative:
- Identifies, collects, and values property that must pass through probate;
- Reviews requests for payment from creditors and pays enforceable debts, expenses, and taxes from estate property; and
- Distributes the remaining property.
The representative follows the deceased person’s will, or if they left no valid will, California inheritance law. So, does a will avoid probate? No, a will specifically requires the authority provided through the probate court system to transfer property under its instructions.
After distributing the deceased’s property, the representative completes the final paperwork and closes the estate.
Why Avoid Probate?
Probate provides a formal process for transferring property, paying debts, and resolving disputes. However, many people look for strategies to avoid probate because it can involve:
- Court filings and waiting periods that delay ownership transfers;
- Filing fees, appraisal costs, and compensation for the personal representative; and
- Public court records identifying estate property and the people involved.
You can reduce the property that must pass through probate by arranging other legally effective transfers during your life.
How to Avoid Probate in California
A probate avoidance plan begins with reviewing what you own, how each asset is titled, and whom you want to receive it with an estate planning attorney. Your attorney can advise you on the availability and utility of several types of non-probate assets—types of property that include built-in transfer mechanisms and therefore do not require probate court to transfer. They may advise you to use :
- A living trust,
- Survivorship ownership,
- Beneficiary designation, and
- Transfer-on-death deeds.
Your attorney designs a plan customized to your life and your needs, including probate avoidance.
Create and Fund a Revocable Living Trust
A revocable living trust is a legal relationship for holding and managing property. As the grantor, the person who creates the trust, you establish instructions for how a trustee should manage the trust and generally retain control of its property during your life as the trustee. You also name a successor trustee to take over when you die or can no longer manage the trust.
When does a trust avoid probate? A trust can avoid probate when you create it during your life, select instructions to address what happens after your death, and transfer the intended property into it before you die. Placing property in a trust is often called funding the trust. You may fund it by changing deeds, account ownership, and other records to identify the trust as the asset’s owner. After your death, the successor trustee follows your instructions to manage or distribute property already held in the trust.
Your attorney typically designs the trust for you, identifies which assets it should hold for you, and completes or coordinates the necessary ownership changes.
Use Ownership with a Right of Survivorship
A right of survivorship is an ownership arrangement under which a surviving owner automatically receives a deceased owner’s share. In California, joint tenancy and community property with right of survivorship can be used to achieve this outcome. An attorney can help you identify assets that may benefit from this arrangement.
Name Beneficiaries for Accounts and Benefits
A beneficiary designation is a form or account record naming who receives an asset after your death. You can often name beneficiaries for:
- Life insurance policies and retirement accounts,
- Payable-on-death bank accounts, and
- Transfer-on-death investment accounts.
Your attorney helps you coordinate your beneficiary designations with the rest of your estate plan.
Consider a California Transfer-on-Death Deed
California allows you to use a revocable transfer-on-death deed for certain residential property. You retain ownership during your lifetime, and the property passes to the named beneficiary when you die. To be effective, the deed must:
- Use California’s required form,
- Have two witnesses,
- Be notarized, and
- Be recorded within 60 days after notarization.
Your attorney can advise you whether a transfer-on-death deed or an alternative is the most effective way to transfer property in your circumstances.
What Else Does a Probate Avoidance Estate Plan Need?
Even after you create and fund a trust, some property may remain in your individual name when you die. A pour-over will addresses that possibility and directs the remaining property into the trust upon your death.
Notably, a pour-over will does not avoid probate. Property transferred through it must generally pass through probate before the personal representative delivers it to the trustee. The trustee can then manage or distribute that property under the same instructions that apply to other trust property.
How Can an Attorney Help You Coordinate a Probate Avoidance Plan?
An estate-planning attorney can advise you about your property, relationships, and goals before recommending asset transfer strategies that work for each asset and your estate as a whole. Your attorney explains your options, advises you about how they work together, and drafts documents that implement your plans.
Pakpour Banks LLP helps clients throughout the Sacramento area and Central Valley develop and maintain coordinated California estate plans. We consider how you want each asset managed and transferred, which steps you must complete during your life, and what your loved ones will need to do after your death. Contact us to discuss an estate plan designed around your property and goals.
Legal References Used to Inform This Page
To ensure the accuracy and clarity of this page, we referenced official legal resources during the content development process:
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.