The time after a loved one’s death is emotionally challenging. Handling the grief can be debilitating, and this trauma can be worsened when those family members must go through the complicated probate process shortly after one’s death. As you begin planning your estate and determining how your assets will be handled after your death, you may want to consider how you can make your passing easier for your family by helping them avoid the probate process.
Probate is the legal process required by California to settle a deceased person’s estate by validating the will or administering the estate. The complete probate process includes taking inventory of the deceased person’s assets, paying any remaining taxes and debts, and distributing the property to the designated beneficiaries. If the decedent had a will, the process would mainly involve validating the will. However, if there was no will, the court must take a more active role in estate administration.
Though probate is a legally required process, there are many problems with having your assets go through probate court. One main issue is the difficulty of understanding the complex probate process while grieving for a loved one. Tremendous grief can lower your ability to think and remember things—a phenomenon known as grief brain or grief fog. This cognitive trouble can affect one’s ability to properly handle paperwork and documents, potentially causing mistakes that will delay the probate process. Other reasons to avoid probate court include:
Fortunately, there are multiple ways for your assets to avoid probate in California. One method is to reduce the total value of your estate below the probate threshold. This value is defined under Probate Code 890 and set by the Judicial Council of California. Prior to April 1, 2022, this value was $166,250, but it was revised in April to $184,500.
If your estate is worth more than $184,500, your estate must go through probate court. However, if you can reduce the total value of your estate that is subject to probate below this value, then your family and loved ones will be able to avoid probate.
There are multiple ways to decrease the value of your assets that are subject to probate court. Any jointly held property with a right to survivorship clause will automatically transfer to the surviving owner(s). A common example would be a marital home transferring in entirety to the surviving spouse. Another method to reduce the assets under probate control is to create a living trust. The assets will remain under your direct control until you pass, then the instructions you set up for the trust will begin. The assets in the trust are in the trust’s name and not yours, therefore avoiding probate. You can also give away some assets before you pass, as probate only applies to assets in your name at the time of your death. You will be able to reduce the estate’s value while also watching your loved ones benefit from your assets.
A: No, an estate lawyer helps you get your affairs in order and assists you in developing a plan for your assets. You would contact this person yourself prior to your death. Most of a probate lawyer’s responsibilities are to ensure that the final wishes of the deceased are carried out, and they are consulted by family members following the death of a loved one.
A: The Judicial Council of California updated the probate threshold in April 2022. The value increased from the previous $166,250 to the current $184,500. In order to avoid probate, all assets that can be controlled by the probate court must have a total value of less than $184,500. Any value in assets higher than this must go through the probate process.
A: Any property owned solely in the decedent’s name is subject to the probate process. This can include both tangible and intangible property. Tangible property includes anything that can be liquidated immediately for cash, such as a home, vehicle, electronics, jewelry, or household goods. Intangible assets cannot immediately be liquidated for cash and include stocks, trademarks, interest in a business, and patents.
A: Some types of assets and property do not need to go through probate court. Property held in joint ownership with a right of survivorship clause is exempt from probate and passes to the surviving owner(s). Retirement accounts and life insurance policies have a designated beneficiary that allows them to avoid probate. Any assets that were moved to a living trust are also exempt and will transfer as the account owner specified in the trust.
The California probate threshold is important to understand when planning your estate. Choosing to hire an experienced estate lawyer can ensure your estate is handled in the most effective way possible so that your family has less to worry about upon your passing. Sweeney Probate Law has spent over five decades representing Californians in estate and probate law, so our experienced team is ready to help give you peace of mind and ensure that your estate is handled in the way you would want it to be.
