How to Avoid Probate in Orange County

Helping Avoiding Probate in Irvine & Beyond 

One of the main goals of estate planning is to avoid the unpleasant experience of probate. When an individual passes away without leaving behind an estate plan, their assets and property must then go through the probate process in order to be distributed. This generally involves litigation and a great deal of stress, as well as other emotions for the surviving family members and loved ones of the deceased.

You may establish a living trust in California to escape probate on practically every asset you possess, including real estate, bank accounts, cars, and so on. You'll need to make a trust declaration (similar to a will) in which you appoint someone to act as trustee after your passing (called a successor trustee). After that, as the guardian of the trust, you must transfer possession of the property to yourself. After that, the land would be under the jurisdiction of the trust's terms. Your replacement trustee will be free to pass it to the trust beneficiaries without having to go through probate court.

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If you own land jointly with another person and the inheritance requires the "right to survivorship," the remaining owner inherits the property until the other owner dies. To pass the land, no probate will be required, but certain documents will be required to prove the title to the property is owned exclusively by the surviving owner.

These styles of shared ownership are available in California:

Joint tenancy. When one of the joint tenants dies, the house immediately passes to the remaining owners. There is no need for probate. When spouses (married or not) buy real estate, cars, bank accounts, or other valued property together, joint occupancy is always the best option. In California, each joint tenant must own an equal share of the property.

Property in the society with a right to survivorship. California is a community land jurisdiction, which ensures that unless they take action to hold their property separate, spouses and licensed intimate partners share all property purchased through the union jointly.

Mortensen & Reinheimer, PC serves to help individuals plan their estate so as to prevent their loved ones from having to endure the necessity of probate. A common misconception that people have is that simply preparing a will can avoid probate. However, a simple will is not a non-probate transfer like a trust. Thus, the will must be brought before the probate judge and be found as a valid document, after which the probate process must occur, which can lead to estate litigation.

In order to avoid all of the confusion and difficulty that comes with having only a will, you must be sure to retain an Orange County estate planning attorney with the experience and knowledge to help. Each lawyer with Mortensen & Reinheimer, PC has extensive skill in estate planning and can help you draft the best possible living trust so that probate can be avoided.

Other Strategies to Avoid Probate

There are several strategies that can help you avoid the probate process, allowing your assets to pass directly to your heirs without the need for court involvement. Here are some effective methods:

Beneficiary Designations

• Retirement Accounts: By naming beneficiaries on your retirement accounts (like IRAs or 401(k)s), those assets will automatically pass to your heirs upon your death.
• Life Insurance Policies: Life insurance policies also allow you to designate a beneficiary, so the payout goes directly to them, bypassing probate.
• Payable-on-Death (POD) Accounts: Bank accounts, CDs, and savings accounts can be set up with a POD designation, ensuring that the funds are transferred directly to your beneficiary without going through probate.

Transfer on Death Deeds (TODDs)

• A Transfer on Death Deed (TODD) allows real estate properties to automatically pass to a beneficiary upon the owner’s death.
• In California and several other states, this simple document lets you retain full control of your property while you're alive, and then transfers it to your designated beneficiary without the need for probate.
• This can be a great way to avoid the lengthy probate process for properties like homes or rental properties.

Joint Tenancy vs. Tenancy in Common

• Joint Tenancy: This form of property ownership allows two or more people to own property together, with the right of survivorship. When one owner dies, the property automatically passes to the surviving owners, avoiding probate.
• Tenancy in Common: In this arrangement, each co-owner has a distinct share of the property. When one owner dies, their share goes to their heirs (not the surviving co-owners), and this typically requires probate to transfer the property.
• Joint tenancy is a common method to avoid probate, especially for spouses or close family members.

Gifting Assets

• Lifetime Gifts: One way to reduce the size of your estate and avoid probate is to give assets away during your lifetime. By gifting property, money, or other assets to your heirs, you reduce the total value of your estate that will be subject to probate.
• Gifts under a certain value may also avoid gift taxes, further simplifying the transfer of wealth.

Common Misconceptions About Probate

There are several myths surrounding probate that can lead to confusion and mistakes in estate planning. Let’s clear them up:

Wills and Probate

• A will alone does not avoid probate. While a will provides instructions for asset distribution, it must still be probated to ensure the deceased's wishes are legally executed. This involves court involvement and can be a lengthy, costly process.

Trusts vs. Wills

• Living Trusts: Unlike a will, a living trust can avoid probate entirely. When you place assets in a trust, they are owned by the trust, not you. Upon your death, the trustee simply distributes the assets to your beneficiaries according to the terms of the trust, without involving the court.
• Wills: A will is a public document that requires probate, which can lead to delays, legal fees, and public scrutiny. A living trust offers more privacy and faster distribution of assets.

"I Don’t Need a Trust If My Estate is Small"

• Many people believe they don’t need a trust because their estate is small. However, even modest estates can be tied up in probate for months, causing unnecessary delays and legal costs. A living trust can streamline the process, reduce costs, and provide peace of mind, no matter the size of your estate.

What Happens During the Probate Process

If probate is required, here's what you can expect:

Steps of Probate

• Filing the Will: The process begins by filing the will with the probate court (if there is one). If no will exists, the court will appoint an administrator to handle the estate.
• Inventory of Assets: The court will require a list of all the deceased person’s assets, including property, bank accounts, and investments.
• Paying Debts and Taxes: The estate will be used to pay off any outstanding debts, taxes, and other obligations before the remaining assets are distributed to heirs.
• Distributing Assets: Once debts and taxes are settled, the remaining assets are distributed to the beneficiaries according to the terms of the will or, if no will exists, according to state intestate laws.

Costs and Delays in Probate

• Court Fees: Probate involves various court fees, including the initial filing and other administrative costs. These can add up quickly, especially for larger estates.
• Attorney Fees: Probate typically requires hiring an attorney to navigate the legal complexities, and these fees are paid from the estate.
• Time: Probate can take anywhere from a few months to over a year, depending on the complexity of the estate. Delays in asset distribution can cause frustration and emotional strain for surviving family members.
• Emotional Stress: The probate process can be emotionally taxing for family members, especially if disputes arise among heirs or if the process drags on longer than expected.

By understanding these strategies and misconceptions about probate, you can make more informed decisions to protect your estate and your loved ones from unnecessary delays and costs. Whether you choose a living trust, beneficiary designations, or other probate avoidance strategies, it’s important to work with an experienced estate planning attorney to ensure your wishes are honored efficiently and effectively.

Frequently Asked Questions About Avoiding Probate in Orange County

• 1. Can a Will Avoid Probate?
  No, a will alone cannot avoid probate. While a will outlines how you want your assets distributed, it must still go through the probate court to be validated. Probate is required to ensure the will is executed according to the law, and this process can take time, incur legal fees, and cause emotional strain for your loved ones.
• How Does a Living Trust Help Avoid Probate?
  A living trust allows your assets to pass directly to your beneficiaries without going through probate. When you transfer your property into the trust, the trust technically owns it, not you. Upon your death, your successor trustee can distribute the assets according to the trust's terms, bypassing the lengthy probate process.
• What is the Difference Between Joint Tenancy and Tenancy in Common?
  Joint Tenancy allows property to automatically pass to the surviving co-owner(s) without going through probate. This is a good option for married couples or family members.
  Tenancy in Common means that each person owns a share of the property. When one owner dies, their share must go through probate to be transferred to their heirs.
•  What is a Transfer on Death Deed (TODD)?
  A Transfer on Death Deed (TODD) is a simple legal document that allows real estate to pass directly to a beneficiary upon the owner's death. In California, this is a great tool to avoid probate for real estate while keeping control of the property during your lifetime.
• Can I Use Beneficiary Designations to Avoid Probate?
  Yes! Beneficiary designations on retirement accounts, life insurance policies, and bank accounts allow those assets to pass directly to your beneficiaries without the need for probate. Make sure your beneficiary designations are up to date to avoid any confusion after your death.

Hire an Orange County Probate Lawyer Today

Learn what one of our attorneys can do for you by contacting us today or filling out our online form to request a consultation. We can provide an initial case evaluation and we are flexible when it comes to developing payment plans. With our help, you have the best chance of drafting the strongest and clearest will and forming the most detailed estate plan possible.