Discussing end-of-life preparations can be a difficult, stressful experience, and, understandably, it’s a subject most residents of Irvine, California, would prefer to avoid. Unfortunately, failing to make any sort of legal plan regarding how your assets and property should be handled after your passing can place an incredible burden on your loved ones. It can also lead to the misallocation of your belongings, causing additional conflict, anger, and pain. Some people go as far as creating a quick, handwritten will, but without making it official in any legally binding manner, such a document would not hold up in court. That’s why it’s extremely important to work alongside an experienced Irvine probate attorney. Your attorney can ensure you are aware of all the options you have at your disposal, how best to distribute your assets, and what documentation to file to ensure that your wishes are carried out after your death.
One important aspect of estate planning is probate. This is a term used to describe a legal process during which the courts determine how your property should be distributed and lawfully transfer said property to your beneficiaries. This might seem relatively straightforward; however, there are several challenges and complications involved within the probate process.
What Is the Relation Between Estate Planning and Probate?
Estate planning refers to the practice of determining how you would like the various assets of your estate to be distributed after your passing or in the event of your incapacitation. One of the most well-known forms of estate planning is the creation of a will. Other acts of estate planning include giving someone your power of attorney, appointing someone as the executor of the estate, and creating a living trust to be implemented if you become unable to act on your own behalf. With all this in place, it may seem strange for a process like probate to exist, considering all the documentation you can prepare in advance.
For a will to be considered legally valid in California, the only requirements are that you must be over the age of 18 and considered to be of sound mind when you sign it. This is referred to as a holographic will, and it does not need to have witnesses or notaries involved. This makes the creation of the will more accessible to the public; however, it also makes it more likely for unusual or conflicting situations to occur, requiring court intervention to clarify the subject.
Even if a will is created in tandem with an attorney and carefully vetted to avoid such complications, it is still possible for beneficiaries to willfully misunderstand aspects of the will. As such, probate court serves as an impartial third party charged to carry out your wishes as closely as possible. Thus, even an extremely well organized and carefully crafted will must go through probate to ensure it is validated and properly executed.
What Are the Downsides of Going Through Probate?
With all this in mind, it’s easy to see the value of probate and why it exists in the first place. There are plenty of situations where such interventions are necessary. However, there are also several reasons people specifically seek to minimize how much of their estate will go through probate. While specific concerns may vary from person to person, these are the three most common reasons why people would rather avoid probate:
- Costs The last thing you want your family to worry about in a time of grief is money, but unfortunately, there are many costs associated with death. On top of funeral expenses, your loved ones may also have to cover probate fees. In the state of California, probate fees are determined as a percentage of the gross value of your estate, meaning that any remaining debts are not taken into consideration. They’ll also have to pay court fees, which can quickly add up depending on the length of the process.
- Length of Time Probate is not the sort of process with a quick turnaround time. While the exact length of each proceeding will vary depending on factors such as the size of the estate, the number of beneficiaries and any additional complications, the average length of probate in California is about seven to nine months, assuming no one is contesting the situation.
- Lack of Privacy Finally, all probate-related documentation is a matter of public record, meaning that anyone with an interest in the proceedings could have access. This includes information detailing the assets included in the estate and the beneficiaries to whom those assets were given. If any aspects of the will were conditional, those conditions might be publicly available as well.
How Can You Avoid Going Through Probate?
Depending on your situation, it may not be possible to avoid probate altogether, but there are a number of strategies to greatly minimize how much of your estate will ultimately go through that process. Doing so directly impacts the above downsides, as the reduced size of your estate will, in turn, reduce costs, shorten the processing time, and cut down on how much of your information is made public. Here are the most common strategies to avoid probate after death:
- Create a Living Trust Most of your assets can be owned by a private entity known as a trust instead of an individual. By creating a trust and naming yourself as the primary trustee, you retain ownership of said assets. However, this allows you to then name a successor trustee so that in the event of your passing, all assets owned by the trust become accessible to said successor. Assets transferred in this manner do not go through probate.
- Add a Joint Owner Another way to handle ownership is to add a joint owner. This is only applicable to certain types of assets but can include real estate and businesses.
- Transfer-On-Death Arrangements There are also a variety of assets that allow you to have them automatically transfer to another individual after your death, successfully avoiding probate. These include bank accounts, stocks and bonds, and even real estate deeds. That being said, the process for each will differ depending on several factors. An attorney can help you ensure that this is all done correctly and that all of your accounts are up to date.
- Gift Assets While Alive Finally, one of the most straightforward ways to prepare for your assets’ distribution is to simply give them away while you’re still alive. Doing this allows you to directly reduce the size of your estate. Of course, it can be difficult to do if you’re still enjoying the benefits of your assets, but any items you no longer have use for can certainly be gifted ahead of time.
If these tools are applied effectively, it may be possible to reduce the size of your estate to the point of qualifying for the simplified probate procedures California has in place for what the state considers “small estates.” This effectively circumvents a lot of the usual challenges of going through probate.
Contact the Flanigan Law Group for Estate Planning Assistance Today
While this information is critical to ensuring that you’re aware of the options you have at your disposal, it can still be extremely intimidating to try and sort out all the paperwork and legal processes necessary to carry out your estate planning. That’s why working with an Orange County Probate Attorney can be extremely helpful. If you’re wondering, “Where can I find an estate lawyer near me?” The Flanigan Law Group is here to assist. With years of experience in estate planning experience and probate in Irvine, CA, our team can answer your every question and help you start. To schedule an initial appointment, simply reach out via our website.