When someone passes away, their estate must be “settled” in the eyes of the law. This is accomplished through a court-supervised process called probate. Unfortunately, probate is notorious for being burdensome and can potentially jeopardize certain elements of your estate plan, so it is generally in your best interest to use legal tools to avoid probate whenever possible. Below, we review 5 reasons you should avoid probate in California.
Reason #1: Probate is Expensive
Probate is not free, and your surviving loved ones will be responsible for paying numerous court fees to complete the process. Your surviving family will also likely need to hire an attorney to provide advice and guidance.
Part of probate involves inventorying and appraising estate assets. The probate court will demand accurate appraisals, so your surviving loved ones will also need to deal with appraisal fees.
Costs can quickly compound if one or more probate conflicts develop. If an interested party contests the decedent’s will or if a creditor sues for non-payment, there will be additional expenses associated with the resulting litigation.
Reason #2: Probate is Time-Consuming
Probate is rarely an efficient process, especially when an estate is large or complex. While certain timelines are enforced, it often takes up to two years to settle many estates.
Keep in mind that your assets will not be distributed to your beneficiaries until the end of probate. In other words, your heirs may need to wait multiple years before they receive planned inheritances. This may result in substantial hardship if a loved one is depending on certain assets once you are no longer around to provide for them.
Again, if a conflict arises, the probate process can become even more protracted. Probate will not conclude until all disputes are settled, so asset distribution may face further delays while any necessary litigation plays out.
Reason #3: Probate is Public
Your last will and testament, while a powerful estate planning document, becomes a matter of public record in probate. Anyone will be able to review assets described in your will and who will receive them. This can result in potential embarrassment and unnecessary exposure. It could even trigger conflicts among family members.
If you value your privacy, you should make every effort to avoid probate by utilizing alternatives to wills. A trust, for example, is entirely private.
Reason #4: Probate Can Overwhelm Your Loved Ones
In your will, you should name a personal representative who will be responsible for overseeing your estate. If you pass away without a will in place, the probate court will appoint a personal representative to handle your case – typically an immediate surviving family member.
A lot will be asked of your personal representative throughout the probate process, as they will be tasked with:
- Initiating Probate
- Locating and Entering the Will
- Notifying Creditors, Heirs, and Beneficiaries
- Inventorying and Appraising Estate Assets
- Fielding Creditor Claims and Settling Debts
- Resolving Disputes
- Filing Taxes and Court Paperwork
- Distributing Estate Assets
Many people understandably choose to name a close family member as their personal representative, but probate can quickly become a source of tremendous stress if someone is not familiar with how to handle the process. Probate thus has the potential to amplify the worries and challenges of already grieving loved ones.
Reason #5: You Lose Control of Your Estate
You might think that any reasonable instructions you leave in your will must be enforced so long as you properly validate the document. Without proper planning, probate can in fact dramatically impact what your beneficiaries ultimately receive.
Portions of your estate may need to be liquidated during the probate process to settle outstanding debts. Your debts are not canceled when you pass away, and your personal representative must make an effort to notify all creditors of your passing. Creditors will have the chance to bring claims against the estate, and the personal representative will need to settle these claims using estate assets.
It is wise to closely track your debts and proactively set aside funds for this purpose. If sufficient monetary assets are not available, the personal representative will be forced to sell property and use the proceeds to pay creditors. Liquidated assets will consequently not be passed to their intended beneficiaries.
During probate, any interested party can also challenge the validity and/or enforceability of your will. They may claim the document was not appropriately signed and witnessed or that it was written under duress. If the challenge is successful, your will’s instructions will not be followed, and you will have no say in how your assets are distributed.
Our Attorneys Can Help You Avoid Probate in California
Strategic estate planning can help you minimize the impact of probate. Trusts tend to facilitate asset distribution more efficiently than wills while offering greater degrees of privacy and flexibility. Crucially, trust assets are nearly always exempt from probate.
Placing a grand majority of your assets in trusts can greatly simplify the probate process. You can still use a will to name a personal representative and a guardian for your minor children, and you might also specify that any assets not already in a trust be transferred there once you pass away.
At Samra Dhillon & Associates, our attorneys have over 40 years of combined legal experience and are ready to help you build a comprehensive estate plan. We can review probate avoidance options and create trusts tailored to your needs and goals. Our compassionate team knows what is at stake and will work to protect your interests every step of the way.
Contact us online or call (916) 571-1550 to schedule a free initial consultation with our team.