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Four Ways to Avoid Probate

What is Probate?

There are four basic ways to avoid probate in California. Probate is the court-supervised process that occurs after someone passes away, even if they left a will. It ensures the estate is distributed in accordance with their wishes, and all taxes and debts are paid in full. The executor or attorney representing the estate begins this process, and a court then authenticates the will, authorizing the distribution of the estate to proceed.

Why Avoid Probate?

Time and money are the two main reasons to avoid probate. The court deducts its own fees, and like all court proceedings, this process can be expensive and drawn out, especially if the will is contested. There are other reasons to avoid probate; it’s a public process, meaning anyone can search records to access information on the value of an estate, and personal financial affairs.

How to Avoid Probate

The only way to avoid probate in California is to plan for your assets to transfer directly to your heirs. There are four main ways to accomplish this.

  1. Trust Agreement
    Assets placed in a trust are transferred directly to the named beneficiary. It is no longer necessary for a trust to be handled by a third party. The person who creates the trust may also manage it, until the time of their death.
  2. Right of Survivorship
    The right of survivorship doesn’t apply to bank accounts, but when two individuals share the title to a property through “joint tenancy,” full ownership can be transferred to the surviving party.
  3. Designation of Beneficiary
    Life insurance policies and retirement accounts fall under the Nonprobate Transfer Rules in California. Funds in these types of accounts are transferred without passing through probate.
  4. Operation of Law
    California Multi-Party Account Laws determine who owns the remaining money in a bank account after the account holder is deceased. Funds are transferred to a new account for the survivor and avoid probate.

If you have questions regarding the probate process in California, or any other estate planning needs, please contact Lewman Law for further information and assistance.

Filed under Probate Tips

Why You Don’t Want a Joint Will

Why You Don’t Want a Joint Will

If you’re married, a joint will probably seems like it makes the most sense. After all, married couples share everything. But a joint will may not truly be in the best interest of the surviving spouse, and some states don’t even recognize them.

The Downside of Joint Wills

The main concern with a joint will is that it can only be revised so long as both spouses are alive and in agreement. It’s a tightly binding contract. This is most likely to become an issue if one spouse greatly outlives the other and there are unforeseen circumstances that arise. In this case, the remaining spouse must contest the will through court action should they wish to make changes.

While once common, joint wills are now rarely recommended. Depending on the document, the surviving spouse may not be able to manage funds according to life changes. For example, they may not be able to sell the family home if they wish to relocate or downsize, or to help grandchildren with the cost of college.  

Another reason joint wills can be problematic is if there are children from previous relationships, or the surviving spouse later remarries. Separate wills make it easier to sort out how assets are to be divided among beneficiaries. Another way to transfer wealth to children is to set up a trust, which may include any wishes or provisions.

Legal Advice

Joint wills are more likely to lead to costly probate litigation, and it’s important for the remaining partner to be able to amend their estate plan in order to address unexpected life changes. Laws vary by state, which complicates things. For alternatives to a joint will, it’s best to seek legal advice.

If you have questions about creating or revising your current will, please contact us at Lewman Law.

Filed under Estate Planning Tips, Legal Services