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Does My Will Avoid Probate in California?

Probate is a lengthy and expensive process of distributing a person’s property and assets after death. The courts survey the estate, order debts to be paid, and then distribute the remaining assets to the surviving family members of the deceased.  In general, probate is a process that should be avoided since it can take upwards of a year or longer if there are any issues or complications, and that is not mentioning the price, which can cost up to seven percent of the estate’s total value.

A will is a document that states a person’s final wishes on how their property should be handled. A will decides which family members and heirs receive any money or property left in the estate. The biggest issue with a will, however, is that the document must still be me administered by the courts and pass through probate in order to be validated. In the simplest terms: a will still has to deal with the hassles, complications, and expense of probate court.

Why Should I Want to Avoid Probate?

There are many issues and inconveniences with going through probate, the least of which is having to manage the deceased person’s affairs while also trying to mourn their passing at the same time. On top of the recent grief, probate can also put a strain on your family for many other reasons, which include:

  • Financial stress because of the price

  • The strain of dealing with a year-long process

  • Dealing with court dates and other issues

  • Figuring out a way to pay for the entire process

  • Probate court is a public process

  • Property tax consequences

In California, probate attorneys can charge a “stationary fee” which is a certain percentage of the gross value an estate. The price of probate can cost up to three percent for estates valued at $200,000. The trouble with this fee is that the value is taken from the gross number where debts and other monies owed is not considered. An estate can be valued at $200,000 but be in the red because of the money owed to collectors. However, the probate process will still cost three percent of the gross value.

How Do I Avoid Probate?

Since wills do not avoid probate, is there any way to keep a person’s assets out of the court system? Yes, by skipping the will entirely and drafting a living trust. A trust is a document that already handles the distribution of property and other assets by placing them into a jointly owned trust with family members or close friends who will manage the estate once a person passes away. Trusts typically cost a fraction of the price that the probate process will, and also save time and unneeded stress when handling a deceased person’s affairs.

Who Can I Talk to about Wills, Trusts, and Probate?

If you are currently involved with probate, or would like to draft a trust, or need a current trust updated, the best plan of action is to consult an experienced probate and estate planning attorney. At Elder Law Services our team specializes in estate planning and probate law. We offer a FREE consultation to anyone interested in our services and will sit down with you and your family to draft a plan of action that will protect your assets, or speed through the probate process, or update any current document you may have. We look forward to serving you.

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What happens if you don't go through Probate?
If you do go through the Probate process in California when someone dies but Probate is required for their Estate, then the heirs or beneficiaries will not be able to receive their inheritance. Instead, the deceased person’s assets will be frozen and no one will have the legal authority to access, sell, or transfer the estate’s assets.
What does an executor have to disclose to the heirs?
An executor’s primary responsibility to the heirs or beneficiaries is to notify them that they are, in fact, beneficiaries. Beneficiaries have the right to know they’ve been included in a will early on in the probate process.
Can the executor of the estate change the will?
No. The executors of a will have a duty to act in the best interests of the estate and the beneficiaries named in it. An executor can’t change the will without the permission of the beneficiaries. It is technically possible to make changes to a will by creating a deed of variation.