(650) 382-4331

Can Probate Be Avoided with a Will?

One of the top four reasons American adults give for failing to have an estate plan prepared is lack of time. And, in many ways, this is a perfectly valid reason for most of us. We live in an increasingly busy society, and it can feel overwhelming to find the time necessary to fit in one more task. Yet, as busy as we are, there are some things which we simply must find time for, and estate planning is one of those things. At a bare minimum, you should ensure you have a basic will, which names beneficiaries and an executor, as well as a guardian for your minor children. If you are married, you may think this is unnecessary—that your spouse will get everything. This is only true in some situations, and certainly not for every single asset, particularly those assets which are in your name only.

If you are single, then it is even less obvious who will get what, particularly if you have living parents and siblings. It is so very important that you not procrastinate on this particular issue—estate planning. Death comes when we least expect it, and you would never want to leave a mess for your loved ones to clean up. Make the time to contact Mark Gullotta and discuss your estate plan. It can be one of the most important things you do for those you love. Mark will make the process as quick and painless as possible, answering your questions in an easy-to-understand manner, and ensuring your estate plan meets your needs.

What is Probate?

When a person dies, property in the decedent’s name must be distributed to his or her heirs or to beneficiaries of a will. Also, creditors must be contacted and paid. If no will exists, the decedent’s estate is still distributed but will go to heirs under California probate laws, and the personal representative will be based on a priority list under California law. There are certain types of assets that do not go through probate, including life insurance policies with a designated beneficiary, bank accounts with a payable-on-death beneficiary, real estate held jointly with the right of survivorship, and retirement accounts with a named beneficiary. Assets held in a trust are also exempt from probate.

What is the Process for California Probate?

If a will exists, the person who made the will probably chose an administrator or executor. If there is no executor named in the will, then the court will appoint a personal representative, and if the decedent named an executor, the court will formally appoint that person. If there is a question about the validity of the will, it must then be “proven” in court to show it is valid and was not signed under duress. The court will ensure the will follows state requirements as far as signatures and witnesses. Next, the personal representative will identify, collect and inventory all the decedent’s assets. In almost all cases, these assets cannot be sold or distributed until the probate process is complete. Appraisals will be conducted by a court-appointed probate referee, and debts and taxes owed by the deceased will be paid. Finally, the remaining assets will be distributed according to the wishes of the decedent if there is a will, or according to state law if there is no will. 

Why Would You Want to Avoid California Probate?

There are at least three reasons most people would rather avoid probate. Probate can be a lengthy process, it can be expensive, and it is a public process, meaning anyone with a desire can see the details of the will. Probate can generally take anywhere from nine months to two years, although the “average” amount of time for California probate is about a year and a half. This means that heirs who could be depending on their inheritance to pay basic expenses could be waiting for a considerable amount of time.

Are There Simplified Types of Probate in the State of California?

Under the California Probate Code, there are certain types of simplified probate procedures available—known as summary probate. Through this simplified process, the will of the decedent is honored and some or all assets distributed, without the need for full probate in court. This simplified procedure is not only quicker, but it is less expensive. Your estate is eligible for simplified probate if it falls into one of the following categories:

  • Some assets inherited by a surviving spouse or registered domestic partner can take advantage of a Spousal Property Petition, which will be submitted to the probate court for approval. There is no limit on the value of property which can be transferred via the Spousal Property Petition.
  • A Small Estate Affidavit allows inheritors to skip probate when the total value of all assets left by the decedent is less than a specific amount. That amount is $166,250 in 2020. The inheritor need only prepare a short affidavit, claiming under penalty of perjury certain things, including that he or she is entitled to a specific asset. Once the person or institution who is currently holding the property receives the affidavit and a death certificate, the asset is released. In order to take advantage of a Small Estate Affidavit, the value of the estate must be no more than $166,250 (in 2020) and can only be used after 40 days from the decedent’s date of death. If the property is real estate, that value is lower, or $55,425 (in 2020).

Can California Probate Be Avoided with a Will?

So, the short answer to the question of whether probate can be avoided with a will is “no.” In almost all cases, when a will is left by the decedent, (and when no will is present after the death), if the decedent’s estate does not qualify for a Small Estate Affidavit Probate, or a Spousal Property Petition, there must be a probate.


Mark Gullotta Can Answer Your Questions Regarding California Probate

If you have questions regarding California probate, attorney Mark Gullotta can help answer those questions. Mark can make the probate process much less difficult, minimizing surprises. With more than 17 years as an estate planning attorney, Mark Gullotta has been certified as one of the top attorneys of North America for the years 2015-2019. Mark Gullotta can help those who need probate help or any type of estate planning assistance in the San Mateo County area, including San Bruno, Millbrae, Burlingame, South San Francisco, Daly City, Colma, and the City of San Mateo. Contact the Law Office of Mark Gullotta today.

DISCLAIMER: The information provided in this document is not legal advice. No attorney-client relationship is created as a result of this presentation. The content is intended to be a general overview of the subject matter covered and is educational and informational only.