Trusts and Estates Blog

How to Avoid Probate in California

Judge signing a court order In California, the number one goal in estate planning is to avoid probate. California has one of the most rule driven, expensive and time consuming probate systems in the nation. As a result, it makes great sense to avoid probate in the first place.

How does one avoid probate? The best method in California is through the use of trusts. Creating a revocable, or “living trust,” is like creating a corporation. For a couple, think of a trust as a corporation with two shareholders and two managers – the husband and wife. Just like if the head of a corporation dies, the corporation does not cease to exist. The successor managers take over and everything keeps on operating as before. The head of the corporation does not own the assets, the corporation owns everything. The same is true with a trust. Title to assets are held by the trust, so if the individual, or both spouses die, the successor trustee steps in and takes over. There is nothing to probate because title to the assets are held by the trust, not the individuals.

If you would like more information concerning estate planning, including how to avoid probate, contact Antelope Valley estate planning law firm Thompson | Von Tungeln (TVT) at 661-945-5868 or visit their websites at www.EstatePlanningSpecialists.comwww.EstatePlanningSpecialists.com and www.Medi-CalHelp.com. www.EstatePlanningSpecialists.com is a comprehensive online resource for personal wealth management solutions through wills and revocable trusts. www.Medi-CalHelp.com is a comprehensive online resource for long term nursing home care for the middle class. As Board Certified Specialists in Estate Planning, Trusts and Probate as certified by the State Bar of California Board of Legal Specialization, partners Mark E. Thompson and Kevin L. Von Tungeln are expertly equipped to serve clients with the creative, effective and custom solutions they demand.

Probate: Defining Probate

Young hands tending to an elderly personEstate planning can sometimes be presented as a headache or painful task, yet the rewards of properly caring for an estate are many. Consider this fact: when you pass, everything you own must be transferred to someone else. Ideally, you will have established a trust which will clearly outline who is to receive what. But what happens if you pass without a trust? Does having a trust make that much difference?

When a person dies without a trust, the estate enters probate. This includes people who only have a will. The dictionary definition of probate is “the legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person’s will or the estate of a deceased person without a will. The court appoints either an executor named in the will (or an administrator if there is no will) to administer the process of collecting the assets of the deceased person, paying any liabilities remaining on the person’s estate and finally distributing the assets of the estate to beneficiaries named in the will or determined as such by the executor.” Simply put, the court and law of the state determines who receives the contents of the deceased’s estate. It is a primary goal of most people in California to simply avoid probate.

A probate court is not under obligation to honor any verbal or written wishes a person may have expressed as to the appropriation of their estate. Even if the deceased had told others they would receive certain items of the state, without a will proving such, the claims are invalid.

Setting up your estate properly can be a special way for you to show love and appreciation to loved ones or friends after you are gone, but if you are not proactive in creating a trust now, your estate will be handled in probate court.

If you would like more information concerning estate planning, including learning how to avoid probate, contact Antelope Valley estate planning law firm Thompson | Von Tungeln (TVT) at 661-945-5868 or visit their websites at www.EstatePlanningSpecialists.comwww.EstatePlanningSpecialists.com and www.Medi-CalHelp.com. www.EstatePlanningSpecialists.com is a comprehensive online resource for personal wealth management solutions through wills and revocable trusts. www.Medi-CalHelp.com is a comprehensive online resource for long term nursing home care for the middle class. As Board Certified Specialists in Estate Planning, Trusts and Probate as certified by the State Bar of California Board of Legal Specialization, partners Mark E. Thompson and Kevin L. Von Tungeln are expertly equipped to serve clients with the creative, effective and custom solutions they demand.

Probate: Having a Will vs Not Having a Will

TaxmanDealing with the death of a loved one can be a difficult and painful process. The emotional roller coaster of dealing with death compounds the necessary process of settling the deceased’s estate. One aspect of settling an estate that should be avoided is probate.

Probate is the legal process of settling an estate in a probate court. If a person establishes a will before dying, the executor of the will presents the will to the probate court. The court then determines if the will is valid, listens to any objections to the will (should there be any), and orders the executor to appropriate possessions, lands, monies, and the contents of the will to the proper beneficiaries.

If a will has not been established, the estate is probated according to the law of the deceased’s state of residence and if any minor children are involved, the state determines the caretakers of the children.

The main difference between dying with a will and dying without one is the distribution of the estate. A person with a will has the say of who receives the contents of the estate. A person without a will has no say over the distribution of their estate, but the authority of the estate is given to a court to be distributed in accordance with state law. (Under both circumstances, however, you will not avoid probate.)

Each state differs in probate law, but most are not ideal in following the wishes of a deceased person. Unless a will has been established correctly under state law, the courts have no obligation to follow the deceased’s verbal or written wishes.

If you would like more information concerning probate, www.EstatePlanningSpecialists.com is a comprehensive online resource for personal wealth management solutions through wills and revocable trusts (which allows you to avoid probate). Whether your estate planning goals are immediate or long-term, a California certified estate planning specialist will be able to counsel you on the best options available to you to meet your individual needs. Call us at (661) 945-5868.

Trusts and Estates Blog