Tips to Avoid Probate
In a recent meeting, while discussing probate, a client mentioned that more people should know about how to avoid probate. He wondered why this information isn’t provided to homebuyers when they purchase their homes. This encouraged me to write a bit about the probate process and how a family can avoid the additional costs and time involved in probate.
A probate is a court-supervised process by which the assets of a person who died are distributed to the appropriate creditors, heirs or beneficiaries. This process can often be avoided if the person establishes a trust before their death.
Some people have been told that, because of their “small” amount of assets, a trust is not needed. Most of the time, this is not true. I recommend that every homeowner have a trust. The cost of establishing a trust can range in price but is usually less than $2,000 if the family does not own multiple properties. The cost of probate can also range. If the average single-family home, with an estimated value of $450,000, needs to be probated, the costs and fees would likely be around $26,342.50, broken down as follows: filing fees and court costs, $993.50; publication fee, $899; inventory fee, $450; administrator fee, $12,000; attorney fee, $12,000. Other costs and fees may also be incurred. A probate also causes delays, and can easily last one year or longer.
To avoid a probate, establishing a trust is not enough. It is important to hold title of your assets in your name as trustee of your trust; please see the sidebar emphasizing this. If you already have a trust in place, take the time to double-check the title to your assets, such as real estate, investment accounts, deeds of trust and savings accounts.
A will is another document that is recommended for almost all adults to have in place. We prepare wills to accompany our trusts. However, a will alone will not avoid probate if real estate is involved or if a person’s assets exceed a certain amount.
In addition to having a trust in place, I always recommend executing a Durable Power of Attorney and a Health Care Directive. These documents can be very important if someone becomes injured or disabled. Having an Advance Health Care Directive and a Power of Attorney in place can often avoid the need for a conservatorship, which is another court process that is expensive and time-consuming. Every adult should have a Durable Power of Attorney and an Advance Health Care Directive.
Basic Estate Planning Checklist
• Advanced HealthCare Directive, recommended for every adult, regardless of assets
• Durable Power of Attorney, recommended for every adult, regardless of assets
• Trust, recommended for all property owners
• Title to assets in trust name
• Will, recommended for every adult with even a small amount of assets, such as a small savings account
Written by: Grace S. Johnson, Attorney at Law
Grace S. Johnson is a California attorney who focuses in the areas of probate, bankruptcy and estate planning. She attended Laurence Drivon School of Law, now Drivon School of Law, at Humphreys University in Stockton, California. She shares a law practice in Lodi with her father, Andrew D. Smith. Grace is admitted to practice in the Superior Court of California and the Northern, Eastern, Central and Southern Districts of California.
The information contained in this article is provided for informational purposes only, and should not be construed as legal advice on any subject matter. You should not act or refrain from acting on the basis of any content included in this article without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address your situation. It is generally not recommended to transfer any qualified retirement accounts into your trust.
