What Assets Avoid Probate?

Yee Law Group Inc. > What Assets Avoid Probate?

Probate lawyer for Yolo County, CA

What Assets Avoid Probate?

probate lawyer in Yolo County, CA

Not every person that passes away requires a probate. At The Yee Law Group PC., There are certain situations where our Yolo County, CA probate lawyer can advise that a probate is not necessary. For instance, the following types of assets:

  1.     Accounts with a named beneficiary. These accounts are often referred to as pay-on-death (POD) or transfer-on-death (TOD) accounts. Financial institutions simply require a death certificate and identification to transfer these types of accounts to the named beneficiaries.
  2.     Assets held in joint tenancy with right of survivorship. When the owner of a joint account passes away, the surviving joint owners continue to own the account by right of survivorship. A death certificate is needed to remove the deceased owner from the account. There are certain circumstances where the surviving joint owner(s) do not receive the account. This is most common when the decedent added a joint owner on the account for convenience purposes only. e.g. bill paying.
  3.     Assets held in Trust. The best way to avoid probate is to hold assets in Trust. Assets held in Trust are distributed pursuant to the terms of the Trust by the Trustee.
  4.     Assets intended to be held in Trust. Often times a decedent had a Trust but certain assets were not held in the Trust. In certain circumstances, these assets can be transferred to the Trust after the decedent’s death.
  5.     Assets with a value less than $166,250. If the value of the assets (other than real estate) is less than $166,250, the assets can pass to the heirs without a probate using a summary proceeding or affidavits.

Testate vs. Intestate

Testate means the decedent died with a valid will. Intestate means the decedent died without a valid will. If a decedent dies with a valid will, the decedent’s estate will be distributed pursuant to the terms of the will. If a decedent dies without a valid will, the decedent’s estate will be distributed pursuant to the law of intestacy. The distribution of the decedent’s assets pursuant to the laws of intestacy depend on the make-up of the decedent’s family and the character of the decedent’s assets. The assets may be distributed to the spouse, children, parents, siblings, more remote family members, or a combination of those family members.

The person named in the decedent’s will that is appointed is called the “Executor.” If there is no will, the person in charge of the decedent’s estate is called the “Administrator.” There are other more obscure names for special situations.

Length of Probate

At The Yee law Group PC., our probate lawyers in Yolo County, CA work towards the shortest time-frame. However, even for the simplest of estates, a California Probate can take anywhere from a year to two years to complete. During this time, your family may be left with no assets for their support, and there may not be available assets for the upkeep or maintenance of your other assets (e.g. mortgages on your home or other real estate). Your family may be forced to sell certain property at a discounted rate to avoid foreclosure.

Petition for Probate

In order to initiate a probate, you must file a petition for probate. The petition will ask the Court to appoint you or someone else as the Personal Representative of the estate. The Court determines the appropriate Personal Representative by the terms of the decedent’s Will, or if none, based upon California Probate Code’s order of priority. e.g. spouse, children, grandchildren, parents, then siblings, etc.

The petition also gives the Court some information regarding the assets of the estate, the surviving family members, the decedent’s Will, and whether a bond is required. Once the petition is filed, the Court will set a hearing to determine whether your petition should be approved. These hearings are typically set 45 to 60 days after the petition is filed. Notice and publication of the hearing will be required. At the hearing, if the Court approves your petition, the Court will issue a Minute Order. You are still required to submit a proposed order for the Court’s signature. However, the Order does not actually give you any power.

Other Issues in Probate

There are many other issues that must be addressed in a probate. If these issues are not properly addressed, they will lead to delay, or even worse, liability to the Personal Representative.

Often times there are ways to avoid probate, either before or after the death of a loved one. To have a smooth process, The Yee Law Group Inc.., highly recommends that you consult with a probate lawyer in Yolo County, CA today.