7 Ways to Avoid Probate in California

Probate is a complex and often costly legal process that many California residents wisely seek to avoid when planning their estates. For savvy homeowners, there are several strategies to sidestep the probate system, ensuring a smoother transition of assets to their intended beneficiaries. A reputable estate planning attorney can help you streamline the process, make sure things are as you want, and save on time and expenses.

Legal Ways to Avoid Probate in California

1. Community Property

Community property is a marital property system in California where assets acquired during the marriage are generally considered jointly owned. In the case of a married couple, if they hold their property as community property, the surviving spouse typically inherits the entire property upon the other spouse’s death. 

This transfer occurs without probate, as the surviving spouse is considered the rightful owner by operation of law. In relation to this, if the deceased spouse leaves a will that distributes their share of the property to someone other than the surviving spouse, probate may be necessary.

2. Community Property with Right of Survivorship

Beginning in 2001, California law allowed married couples to hold property as community property with the right of survivorship. This form of ownership combines the advantages of community property with automatic inheritance by the surviving spouse. When one spouse passes away, the property immediately transfers to the surviving spouse, avoiding probate. Moreover, probate becomes necessary after the last surviving spouse’s death.

3. Living Trust

A Living Trust, also known as a Revocable Living Trust, is a popular estate planning tool in California. To set up a Living Trust, you create a legal document that designates a trustee (often yourself initially) to manage your assets, including real estate. When you transfer property into the trust, it is no longer considered your individual property. Instead, it is owned by the trust. Upon your passing, the Successor Trustee, someone you have named in the trust document, takes control of the trust and can distribute the assets according to your instructions without going through probate. This process is efficient and cost-effective.

4. Joint Tenancy

Joint Tenancy is a form of co-ownership commonly used in California, especially among married couples. When you hold property in joint tenancy with someone else, such as a spouse or family member, and one of the joint tenants passes away, their share automatically transfers to the surviving joint tenant(s). No probate is needed in this situation because the property transfer occurs by operation of law. It’s essential to note that probate is only required if all joint tenants have passed away. If one survives, the property transfer avoids probate.

5. Heggstad Petition

A Heggstad Petition is a legal maneuver to place a property back into a trust if it wasn’t properly transferred before the owner’s passing. Success with a Heggstad Petition depends on the language in the trust document. If the trust document effectively assigns the property to the trust, even if it wasn’t formally transferred, a Heggstad Petition may be approved. This allows the property to be managed and distributed according to the trust’s terms.

6. Spousal Petition

A spousal petition is a streamlined process for transferring property to a surviving spouse when one spouse passes away. This method is faster and less costly than probate, typically taking around 3-4 months. It’s designed for cases where the house was acquired during the marriage, and both spouses were on the property title. The surviving spouse can file a Spousal Property Petition and obtain court approval to transfer the property without a full probate process.

7. Revocable Transfer on Death Deeds (RTOD)

RTOD is a method that allows property owners to designate beneficiaries who will inherit the property upon their death. It is often referred to as a “poor man’s trust” because it provides a way to avoid probate without the need for a formal trust. 

The effectiveness of RTOD in avoiding probate was affected by California’s Proposition 19, which imposed restrictions on eligibility, including property value limitations and residency requirements for beneficiaries. You should speak with a qualified attorney to understand these restrictions and the specific rules governing RTOD in California.

Experienced Estate Planning Lawyers Can Help You Avoid the Complexities of Probate

Skilled estate planning attorneys know how to create an estate plan for the specific needs and goals of clients. At Garmo & Garmo, our attorneys will assess your assets, family situation, and finances to create a plan that minimizes the potential for probate. 

• Trust Creation: We will help you establish a Living Trust or other trust types, ensuring your assets are held in a way that avoids probate. Our attorneys can draft the trust documents, guide you through the process of transferring assets into the trust, and advise on trustee selections.
• Beneficiary Designations: We can help you set up beneficiary designations on assets like life insurance policies, retirement accounts, and bank accounts, allowing these assets to pass directly to your loved ones and other beneficiaries without going through probate.
• Title Changes: We can assist with changing the title of real property to ensure it aligns with your probate avoidance goals. This may involve converting ownership to joint tenancy or community property with the right of survivorship.
• Review and Updates: Our lawyers can periodically review and update your estate plan to ensure it remains effective, especially if there are changes in your financial or family situation, or if the law changes.

California’s estate planning laws are complicated, and failing to comply with them can result in costly legal challenges. We can make sure that your plan adheres to all legal requirements.

Get a Dedicated Estate Planning Attorney on Your Side

The estate planning attorneys at Garmo & Garmo, LLP have helped numerous individuals and families avoid probate by creating customized estate plans, establishing the necessary legal structures, and providing ongoing advice and support. To schedule your free consultation, call us at 619-441-2500 or fill out this online contact form.