Dealing with the emotional loss of a loved one can be very difficult for the family members, and not long after death and funeral, the loved ones left behind will have to turn their attention towards locating the will (if there was one) and wrapping up the decedent's financial affairs. If the decedent's estate was valued over $100,000, it will most likely have to be probated unless it was arranged in such a way that probate won't be necessary as with a properly funded revocable living trust.
Probate is the court-supervised process in which the court administrates the estate of someone that has died. The probate process involves making an inventory of all assets, obtaining appraisals of all assets, paying off outstanding debts, and lastly, arranging for the distribution of the decedent's will, or if the person died without a will, in accordance with the manner as prescribed under California law.
While probate supervises the actions of the executor or administrator of the estate, it costs a lot of money and takes time. For many of my clients I recommend achieving the same results but with less expense and in minimum time through the use of a living trust. When someone transfers their assets into a trust, they are no longer subject to probate. The trust is now a legal entity and upon the death of the trust maker (settlor), the trust continues to live on and is administered by the successor trustee in accordance with the settlor's wishes. Probate is not required, court supervision is not required, and there are minimal attorney fees.
Probate proceedings specifically deal with assets that are held in the decedent's name alone. There are several other types of assets that don't pass through a will or probate. Aside from a revocable living trust, one can also reduce their "probate assets" by utilizing the following tools, all of which are not subject to probate proceedings because they transfer automatically to another person when the owner dies.
- Payable-on-death bank accounts
- Payable-on-death retirement accounts
- Transfer-on-death registrations for securities
- Joint ownership of property (joint tenancy with right of survivorship, community property with right of survivorship)
- Gifts
- Life insurance with beneficiary designations
- Simplified probate procedures
Contact a San Jose Estate Planning Attorney
Probate can be a time consuming, arduous and expensive process. If you wish to learn more about revocable living trusts and approximately how much your estate can save by avoiding probate, I encourage you to contact me at the Law Offices of Timothy D. Henry. I gladly offer free consultations to all prospective clients, so feel free to give me a call at (408) 643-0942.