Avoiding Probate In California

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Posted in : Blog, General, California Probate on 10/24/2020 by Christine Padilla, Attorney

What is California Probate?

When someone passes away, many times family and friends are left determining how to manage and distribute the person’s remaining assets, otherwise known as their estate. Depending on the size of the estate and the title in which assets are held, it is often necessary to open a probate case in the local California Superior Court to administer and distribute an estate.

California Probate is a court proceeding under which the court appoints and supervises a personal representative or administrator to gather one’s assets, settle any outstanding debts and expenses, and distribute the remainder of the person’s estate. Probate is required when someone passes away without a valid estate plan in place to avoid Probate. In the event the person left a will but their assets are worth over the California Probate amount of $166, 250, the Court will appoint the executor of the will as the personal representative to distribute the estate in accordance with the person’s will. In the absence of a will, the Court will appoint an administrator as the personal representative to distribute the person’s estate in accordance with state law.

What Are Some Of The Disadvantages to Probate?

You may have heard you want to avoid probate, but are uncertain of the reasons why. Some of the disadvantages to the probate proceeding is that California probate can be both lengthy and costly. Depending on the timing of the probate court and potential difficulties administrating and distributing the estate, the length of time to open and close probate may vary, but the average time for a California Probate is a year and a half.

There are required court fees and costs, appraisal fees, and statutory fees that both the executor and legal counsel are entitled to under California law, based on the size of the estate. Currently, the executor and legal counsel are each separately entitled to 4% of the first $100,000, 3% of the next $100,000, 2% of the next $800,000, and 1% of the next $15,000,000 of the assets of the estate.

In addition to the exposure to costly fees and potential delay, the distribution of an estate through the probate proceeding also renders the matter public. As such, information such as the value of one’s assets, beneficiaries to the estate, and conditions for receipt of assets can be made publicly available.

What Are Some Of The Disadvantages to Probate?

In California, some of the common ways to attempt to avoid a probate include the following:

  • Gifting property prior to the time of death
  • Placing Assets in Trust
  • Designating title to real property with a right of survivorship, such as through joint tenancy and community property with a right of survivorship.
  • Using a Spousal Property Petition when a Spouse has passed away
  • Creating Payable on Death (POD) accounts or beneficiaries for various accounts such as saving and checking accounts, certificates of deposit, life insurance and retirement accounts
  • Creating Transfer On Death securities registration for stocks and bonds
  • Creating Transfer on Death Registration for vehicles or mobile homes
  • Creating Multi-Party Accounts
  • Use of a Small Estates Affidavit if one’s probate assets in California are $166,250 or less

Many of the options listed above implicate various tax consequences, potential exposure to joint account creditors, and other legal consequences. If you need assistance determining whether your estate may be subject to California probate or how to avoid probate, we welcome you to contact the Law Office of Christine Padilla conveniently located in North County San Diego.

Christine Padilla

Owner and Attorney at Law