A lot of people think that a last will is a simple and efficient estate planning document. The idea is that you express your wishes in writing and you name an executor. Your executor will distribute the assets to the inheritors shortly after your death, and that’s the end of the story.
In reality, it is much more complicated. When a will is used as an asset transfer device, there is in fact an executor that acts as the estate administrator. However, the individual or entity that serves as the executor cannot act independently.
The will would be admitted to probate, and the court would supervise during the administration process. One function of the court would be to determine the validity of the will. If anyone wanted to contest the will, they could come forward during probate.
Creditors are informed about the passing of the decedent. They are given time to seek satisfaction from the estate before the resources are distributed to the heirs.
This process can be quite expensive, and it is time-consuming. Assets cannot be distributed while it is underway, so this is a major inconvenience. Another negative is the fact that anyone that is interested can access probate records to find out how the assets were distributed.
It is possible to proactively implement probate avoidance strategies. One common approach would be to convey assets into a revocable living trust.
There are number of benefits to be gained through the utilization of this type of trust, and one of them is the avoidance of probate. The trustee that is named in the document would be empowered to distribute assets to the beneficiaries outside of probate.
Spousal Property Petition
Now that we have provided the necessary background information, we can focus on the probate shortcuts that exist in California.
In our state, probate can potentially be distributed through the utilization of a spousal property petition. As the name would indicate, this avenue can be available when a surviving spouse or domestic partner is receiving an inheritance from their deceased partner.
The probate court would make the determination with regard to the petition that has been submitted. However, the process is much more expedient than the full probate procedure. There is no limit to the amount of assets that can be transferred through the spousal property petition.
Small Estate Affidavit
When certain circumstances exist, probate can be avoided altogether through the utilization of the small estate affidavit. According to Cal. Prob. Code § § 13050, 13100 and following, it can be available for estates that are valued at $166,250 or less. The waiting period is just 40 days.
A small estate affidavit could also be used to transfer an estate that has real estate that is valued at up to $55,425. If there is real estate involved, you are looking at a six-month wait.
Simplified Probate Procedure
The third and final probate shortcut in California is the simplified probate procedure. This is another way that estates that are valued at no more than $166,250 can be transferred outside of the full probate process.
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