Is Probate Always Necessary?

Get the Answer with Our Orange County Probate Lawyer

When a loved one passes away, the first step in the legal process of administering their estate is called probate. This is a court procedure in which all claims to the estate are resolved and the decedent's property is distributed under a valid will. The probate court will initially decide upon the legal validity of the testator's will before naming an executor to the estate, either named in the will itself or by the power of the court. Using the legal power they have been granted, they will begin to dispose of the decedent's assets according to their explicit directions.

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What Happens When You Pass Away Without a Will In Place?

When a person passes away without a legal will, it is called dying intestate. In such cases, the court will select its own estate administrator and it will be up to that individual to manage the estate and distribute assets accordingly. Oftentimes, the way the administrator distributes the assets is quite different than the way that the decedent wished.

According to California Probate Code § 13006, a successor of the decedent is defined as "the sole beneficiary or all of the beneficiaries who succeeded to a particular item of property of the decedent under the decedent's will," if there is a will in place. If there is no will in place, a successor of the decedent is defined as "the sole person or all of the persons who succeeded to the particular item of property […]" or "if the law of a sister state [...] governs succession to the particular item […]."

To try to simplify it: this means that if you pass away without a will in place, in most cases your possessions will be granted to – in order of priority – your children, your spouse, your parents, and your siblings or based on another state's law, depending on where you owned the property.

Do Small Estates Go Into Probate?

Under certain circumstances, the decedent's personal property may actually be distributed to the successors without the need to go into probate. In order for an estate to be "exempt" from probate proceedings, the decedent's estate must qualify as a small estate and meet specific legal requirements, including:

  • Maximum value: The total real gross fair market value of the decedent's real and personal property in California must not exceed this $100,000.
  • Proper affidavits: Successors are required to present an affidavit which meets specific requirements to the holders of the property.
  • Successors: The affiant must be the successor of the decedent and to the decedent's interest in the property, or the affiant must be authorized to act on behalf of the successor.

When the affidavit is executed, it must be executed by all of the successors who have an interest in the property, whether it is sought to be collected, received, or transferred. The following attachments to the affidavit are required:

  • Certified copy of the decedent's death certificate
  • Evidence of ownership
  • Copy of consent allow the transfer of property to the successor

Using Living Trusts to Avoid Probate

If the estate is valued above $100,000, there another way to avoid the tax implications and other costs associated with probate. To avoid the probate of the estate, you may place your assets into a living trust. With a trust, once the trustor passes away, probate is not required because the property technically belongs to the trust. This can be achieved by creating either a revocable living trust or an irrevocable trust. Even though each type of trust has its own advantages, you will want to closely review your situation with a member of our legal team in order to find out which type of estate plan suits your situation the best.

Do You Want to Avoid Probate? Call 714.908.4230 Now to Learn Your Options

The probate process can be lengthy, complex, and potentially costly. When probate is not necessary, you might want to do what you can to avoid it. However, to save yourself from troubles or mistakes in the future, you should consult with an Orange County probate attorney from our firm first. Whether you are planning your estate, a beneficiary to an estate, or a named executor, P. Arnsen Blakely can provide you with reliable legal counsel.

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Orange County Estate Planning Attorney
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Corona del Mar, CA 92625
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The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.