Most everyone tries to avoid probate.  This inclination is sometimes based only upon the oft-repeated phrase, “You must avoid probate!” with little understanding of why probate should be avoided.  In other cases, abhorrence is actually based on horror stories about the length and cost of the probate process.

However, for some estates, probate is the only way to distribute assets and may, in fact, be the best way to reduce or eliminate creditor claims.

What is Probate?

“Probate” is the overall name given to the process whereby a court distributes the assets of a deceased person.  In short, whether the person dies with or without a Will, probate is necessary where the decedent’s property has a total value over $150,000, does not pass to the surviving spouse, and no arrangements have been made for the passage of the property outside of probate (such as through a revocable “living” trust or by joint tenancy).

The property of the decedent called the “estate,” must then be probated to have it passed to the deceased person’s heirs or beneficiaries.  The term “heirs” is used when there is no Will, and the term “beneficiaries” is used when there is a Will designating the persons to receive property.

The probate process is technically precise and highly regulated by the Court.  Virtually everything that takes place during probate is subject to judicial review.  Appropriate estate planning avoids probate altogether while providing for the immediate transfer of the estate to the designated beneficiaries.

Is Probate Necessary?

In California, probate is not necessary to transfer assets to a surviving spouse.  However, a special Court Order called a “Spousal Property Order” may still be required to transfer certain assets, such as real estate and stocks.

Other property can pass outside the probate process using “probate avoidance devices,” such as joint tenancy deeds, “pay on death” accounts, and assets payable to named beneficiaries, such as life insurance, IRA’s, and pension plan death benefits.

If there is under $150,000 in value remaining in the estate after deducting property that passes outside the estate through “probate avoidance devices,” you may be able to take advantage of summary probate proceedings.   These summary proceedings allow you to transfer all the personal property with a one-page affidavit, and real property with a value of up to $150,000 may be transferred in a simplified court procedure.

How Long Does Probate Really Take?

In California, it currently takes a minimum of six months to open and close an estate. Four months is the statutory creditor claims period, and the other two are the general period of public notice for opening and closing an estate.

It can take much longer than six months, depending on whether there are litigation or creditor claims.

The average time to close an estate is currently about eight months.

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June 2023