The term “probate” – which literally means “proving” – refers to the process wherein a decedent’s will must be authenticated, outstanding legitimate debts paid, and assets transferred to the beneficiaries. Probate is a judicial proceeding by which the court decides the rightful heirs and distribution of assets of a deceased.
One of the biggest misconceptions we hear from people is that they have a will so their estate wouldn’t have to go through probate. This is NOT TRUE. If there are assets in the deceased’s name at their passing, it doesn’t matter if there is a will or no will, the estate still needs to go through probate. Smaller estates with a value of $184,500 or less may qualify for a non-formal probate case.
Going through probate can be both more time consuming and expensive without a will than it is with a will. This is because your will can waive certain probate requirements (like having the executor post a bond or obtain judicial approval to have an estate sale). At the same time, probate without a will follows the governing state’s intestacy laws which may likely result in a less-than-perfect split of assets that not only may not be in line with your wishes but may leave many surviving loved ones unhappy.
Protect your legacy—book a free consultation with a Santa Clarita probate lawyer today.
Why You Want to Avoid Probate
- Probate is very expensive.
Money that would be going to the beneficiaries is being spent out of the probate estate on costs, attorney’s fees and personal representative fees.
- Probate can take a long time.
Probate proceedings can take anywhere from 12 months to 24 months to complete. This could be for an uncontested probate (no one is fighting or challenging it). Some probate cases where the family is in disagreement can drag on that could take 5 to 7 years (which means a lot of money on attorney’s fees). Additionally, while the estate is going through probate, the probate estate (money) is not available to the family until it is completed.
- Probate is a public proceeding.
Once the petition is filed with the court, anyone can go to the courthouse, pull the records and find out what was owned, who money is owed to (creditors) and who the beneficiaries are. This could open the beneficiaries up to predators.
Read our blog for more information on avoiding probate in California.
Minor Children and Probate
If someone passes away and they have minor children with no planning in place, state law will decide who gets what and when.
- For example, the intestate statute may mandate divvying up proceeds equally among your children.
- Your older children will get their shares immediately if they’ve attained adulthood (18 years old in California).
- The court will appoint a guardian of its choosing to manage the money for your minor children until they become adults and possibly a separate guardian to raise your minor children.
- A guardian can charge a lot of money to manage the money for your minor children and be a total stranger – as can the guardian who raises your minor children.
- If you die without a valid will, the court, not you, will decide the futures of your minor children.
This is why it is so important for parents that have minor children to get a plan in place to protect their kids. Without legal estate planning documents in place, parents have no say what happens to their minor kids if something happens to them.
Here are a few reasons to set up a trust.
To Avoid Probate
By avoiding probate using trusts, you could save your heirs time and hassle after you’re gone. By using trusts, you are protecting assets as they are directed to your named beneficiaries without going through the court in the probate process.
Using a trust can avoid making your financial affairs public record in probate court. Trusts are a private way to ensure your beneficiaries get the assets you intend for them while avoiding the scrutiny of probate.
For Medicaid Asset Protection
Medicaid is often used later in life for long-term care solutions like assisted living or nursing home fees. Your assets need to be under a certain threshold to qualify for Medicaid care. A qualified elder law attorney can help you set up your assets in a trust to get the Medicaid assistance you need later in life.
What Does a Santa Clarita Trust Lawyer Do?
You may be wondering if you need an estate planning lawyer in order to set up a trust.
There are many different kinds of trusts, and each one comes with its own set of pros and cons that may or may not be right for your specific situation.
Our Santa Clarita trust attorneys will give you the added security of knowing that you’ve carefully considered each potential arrangement and chosen the legal services and estate planning tools that best fit your intentions and goals. You can also make sure that any unusual details or complexities of your particular estate are accurately accounted for in the plan.
When Should You Contact a Santa Clarita Trust Attorney?
It’s never too soon to start estate planning. Unfortunately, the future is never completely predictable, and those who die or become incapacitated before creating an estate plan will have little say over how their assets are managed. Some worry that an estate plan they make now might not be sufficient in the future, but the plans you put into place now can be amended and adjusted for any future changes to your estate.
Get in touch with one of our Santa Clarita trust attorneys as soon as you are considering setting up a trust for your estate plans. This will give you the most time to ask questions and get the answers you need to make informed decisions. You can ask any questions you have now by calling for a free consultation.
How Can a Trust Attorney Help You?
A trust attorney can make the process of setting up a trust, considering who should manage it, and ultimately getting your estate plan in order easier, more efficient, and less time-consuming.