Technically, probate is the process by which the court validates your will. The term “probate” also refers to the winding down of your financial life.
What assets go through probate?
All assets in your individual name or made payable to your estate are subject to the probate process. Examples, would be your house, bank account, or investment accounts if they are in only your name.
What assets avoid probate?
Assets that are NOT in your individual name avoid probate.
- Revocable living trust assets
- Jointly owned assets
- Assets with a beneficiary designation
- Assets held in trust for a beneficiary
- Assets with a pay on death or transfer on death designation
- If your total assets without considering the above are less than $100,000 you may also avoid probate
Probates first step
Whoever has the will of a deceased in his possession must mail a copy of the will to the named executor and file a copy with the probate court within 30 days of learning of the death.
If you die with a will (i.e. dying testate)
With court supervision, the executor pays last bills, gives public notice of death, files all applicable tax forms, works with the probate attorney, and distributes assets as directed in the will.
Note, in California, a community property state, a married decedent cannot give more than 50% of his share of marital assets to anyone other than the surviving spouse.
If you die without a will (i.e. dying intestate)
The court will appoint an “administrator” to carry out all the duties of the executor. The appointment is usually made based on how closely related the administrator is to the decedent.
With court supervision, the administrator pays last bills, gives public notice of death, files all applicable tax forms, works with the probate attorney, and distributes assets as dictated by state law.
Why avoid probate?
Often people seek to avoid probate because it is expensive, time consuming, public, and stressful. Apparently, Elizabeth Taylor used trust planning to avoid probate. That’s why her will, debts, assets, and beneficiaries have not been made public.
As an attorney in San Diego with decades of probate experience, I help you to avoid probate or probate a loved one’s estate. Please feel free to telephone my office at 858-792-5988 for a consultation. I look forward to hearing from you.