TL;DR
Many Californians want to avoid probate to save time, money, and keep their affairs private. You can avoid probate by using tools like living trusts, joint ownership, transfer-on-death deeds, and beneficiary designations. Consulting an attorney ensures these strategies are used correctly and legally.
Why So Many People Want to Avoid Probate
If you’ve ever heard someone say “I just don’t want my family to go through probate,” you’re not alone. Avoiding probate is a top goal for many Californians, and for good reason.
Probate can be:
- Expensive: Attorney, Administrator, and court fees can eat up more than 8% or more of the first $100,000 of the estate’s value and between 2% and 6% of the remaining value of the estate.
- Time-consuming: It often takes 9 to 18 months to complete.
- Public: All probate filings are public record, which means anyone can see your will and assets.
- Stressful: For grieving families, dealing with courts and paperwork can add unnecessary burden.
The good news? Probate is avoidable with the right planning.
How to Avoid Probate in California
Let’s break down the most effective (and legal) strategies to avoid probate and protect your family from court involvement.
1. Set Up a Living Trust
This is the most reliable and flexible method to avoid probate in California.
A revocable living trust allows you to transfer ownership of your assets into a trust while you’re still alive. You stay in control of the assets, but they’re legally owned by the trust. When you pass away, the successor trustee can distribute everything to your beneficiaries without going through probate.
Benefits:
- Avoids court completely
- Keeps your affairs private
- Allows faster distribution of assets
- Can plan for incapacity
2. Use Joint Ownership With Right of Survivorship
Some property can automatically pass to the surviving co-owner, without probate, if it’s held with right of survivorship.
Common forms include:
- Joint tenancy (common for married couples)
- Community property with right of survivorship
When one owner dies, the surviving owner automatically takes full ownership.
Use with caution:
Joint ownership sounds simple, but it can cause legal or tax issues if not set up properly, especially if you add a child or relative to the title. Joint ownership will also limit your control of the jointly owned assets and expose the jointly owned assets to liability for your co-owners debts.
3. Use Transfer-on-Death (TOD) or Payable-on-Death (POD) Designations
Certain assets can skip probate entirely if you name a direct beneficiary.
Examples:
- Bank accounts (POD)
- Brokerage and investment accounts (TOD)
- Vehicles (with DMV TOD form)
- Real estate (with a California Revocable Transfer-on-Death Deed)
These tools are easy to set up and don’t require court approval when you pass away. However, this can also create ambiguities in your estate plan or create potential conflicts if one of the named beneficiaries predeaces you.
California’s DMV offers a TOD form for vehicles: https://www.dmv.ca.gov/
4. Name Beneficiaries on Retirement and Insurance Accounts
Assets like 401(k)s, IRAs, pensions, and life insurance policies do not go through probate if they have named beneficiaries.
To make sure they work:
- Double-check that beneficiary forms are up to date
- Name alternate beneficiaries in case someone predeceases you
- Keep copies of your designations with your estate plan
This is one of the easiest probate-avoidance strategies, yet it’s often overlooked. This strategy also has potential tax benefits to your heirs depending on the amount held in such accounts.
5. Work With an Estate Planning Attorney
DIY probate avoidance sounds appealing, but it can lead to big mistakes. For example:
- Naming the wrong beneficiary
- Not funding a trust properly
- Creating conflicts between your will and trust
- Missing required legal language
A qualified estate attorney can:
- Set up a legally valid living trust
- Help title your assets correctly
- Ensure all documents work together
- Spot red flags that could lead to disputes or probate
In California, where laws around community property and real estate can be complex, professional guidance is worth every penny.
FAQ: Avoiding Probate in California
Q: Can I avoid probate just by writing a will?
A: No. A will goes through probate. To avoid it, you need tools like trusts or TOD designations.
Q: What’s the fastest way to avoid probate?
A: The fastest and most reliable method is a fully funded living trust.
Q: Can a house avoid probate?
A: Yes, if it’s placed in a living trust or has a Transfer-on-Death Deed filed with the county.
Q: What happens if I don’t do anything?
A: Your estate will likely go through probate, and California law will decide how your assets are distributed.
Q: Is avoiding probate legal?
A: Yes. These are legal estate planning tools commonly used in California.
Make a Plan, Not a Problem
Avoiding probate isn’t about hiding assets or beating the system. It’s about protecting your family from delays, court costs, and unnecessary stress.
If you want to avoid probate the right way, we can help you build a custom plan that works for your situation. Whether you’re starting from scratch or updating an old estate plan, we’ll walk you through it step by step.
Schedule a free consultation here or call (909) 608-1220 to speak with a California estate attorney today.
