Probate court is an important part of estate planning in California and understanding how it works can help people ensure that their property and assets are distributed according to their wishes after death. Mary Ann Tardiff, the Atascadero estate planning attorney recently released a summary of the impact probate proceedings can have on an estate and how to legally avoid probate.
Probate court is a division of the California court system that handles the distribution of a deceased person’s assets and property. When a person dies, their assets and property become part of their estate. The probate court is responsible for overseeing the distribution of the assets and property to the deceased person’s heirs or beneficiaries.
The probate court’s main function is to ensure that the deceased person’s assets and property are distributed according to their wishes, as outlined in their will. If there is no will, the court will distribute the assets and property according to California law. The probate court also oversees the payment of any debts or taxes owed by the deceased person.
Although the court makes every effort to be fair and abide by the will, this doesn’t always happen. Loved ones and favored charities may not receive the assets intended for them if the court determines otherwise. If the will is challenged, distribution of assets may be delayed and may not happen as intended. Challenges to the will and creditors claims on the estate can prolong the probate process and become expensive. The court has the authority to order certain assets be sold to meet expenses, regardless of what the will specifies. If an heir presents a strong enough, valid protest, they could be awarded assets that are meant for someone else.
“The best way to avoid probate court have an estate plan that includes a revocable trust (living trust) and a will, along with an Advanced Health Care Directive (AHCD) and appropriate powers of attorney,” reports the Atascadero estate planning attorney. There are also other legal methods, such as:
- Transfer on Death (TOD) processes that transfer ownership of certain assets up death. Property that has TOD beneficiaries is protected from probate proceedings by California law.
- Naming beneficiaries on insurance policies and some investment accounts.
- Making sure that real property and other titled assets are recorded correctly so they automatically pass on to a surviving spouse or domestic partner.
A will alone is not enough to avoid probate court, but a trust is. When someone dies without a trust and a will, and the estate is worth more than $184,500, the estate automatically goes to the probate court. Almost everyone who owns real estate in California already has assets at this threshold.
Additionally, for those who own, or are partners in, a business, it’s important to make sure the business continues in a manner that protects partners and family. An individual’s interest in a business is an asset that can also be subject to probate proceedings without the appropriate protection.
A meeting with the Atascadero estate planning attorney can help you fully understand the probate process and the legal processes that are available to keep an estate out of probate court, ensuring your wishes are honored upon your death.
Benefits of an estate plan include:
- Minimizing estate taxes.
- Personal peace-of-mind knowing that your wishes will be honored.
- Flexibility and control over your estate when the right kind of trust is established.
- Protection of assets during your lifetime.
- Avoid probate court, fees and delays in settling your estate.
Whether you are a young person starting out, a family, or a senior citizen, Mary Ann Tardiff is an experienced attorney who can advise about a successful estate plan. Through detailed analysis, Mary Ann:
- Inventories all of your assets.
- Assist with retitling of assets and preparing deeds.
- Transfer those assets so they are properly held in your trust.
- Establish guardianship for minor children, dependent adults who rely on your care and even beloved pets.
- Assist with setting up college funds.
- Make sure your favorite philanthropic causes are included in your estate plan.
- Draft a will.
- Assist preparing an AHCD and provide guidance for the appropriate powers of attorney related to the estate plan.
- Establish trusts and other legal entities beneficial to the estate.
Law Office of Mary Ann Tardiff
6907 El Camino Real, Ste A
Atascadero, CA 93422