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LegalCornerTM - Probate and Avoiding Probate F.A.Q.'s

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Q.How can I avoid probate without a trust?

A.Of course the number one method used to avoid probate is the Revocable Living Trust also known as the living trust (discussed elsewhere). However, the other major ways to avoid probate include:

1. Small Estates Under $100,000. In California, if the probate assets in an estate are worth $100,000 or less you do NOT need to go to Probate Court. In some cases, the actual size of an estate can greatly exceed $100,000, but if the probate assets are less than $100,000 probate may be avoided. Non-probate assets include: paid on death accounts, assets held in joint tenancy, retirement accounts (e.g., IRAs and 401Ks with listed beneficiaries other than the estate), life insurance (unless payable to an estate), and assets held in a Living Trust.

2. Paid On Death Accounts. Accounts at banking establishments can be made Paid On Death. Unlike joint tenant accounts which each person has access to the funds and an equal undivided interest in the funds, with Paid On Death accounts the person you intend to inherit cannot access your funds while you are alive.

3. Property held in Joint Tenancy. You can hold title to certain assets (e.g., bank accounts, vehicles, and real estate) as Joint Tenants with the Right to Survivorship. While joint tenants are alive they each have equal and complete access to the property. After the death of a joint tenant, his share automatically passes to the other joint tenant(s) (regardless of any provision in a will or trust). Always consult an attorney before placing an asset in joint tenancy and prior to removing a joint tenant.

4. Spousal Property Petition Simplified Probate. In California if the person who dies is survived by a spouse, the spouse can file a spousal property petition with the probate court. While this does not eliminate probate, it does provide for a simplified probate process whereby the title to community property assets can be changed to the surviving spouse. This simplified probate generally takes much less time and often results in reduced legal fees.

Copyright 1999-2019 Melissa C. Marsh. All Rights Reserved. All Information on this website is subject to a Disclaimer and Use Agreement. This information is provided as general information only and should not be construed as legal advice. We advise you to seek the advice of competent legal counsel to address your own specific questions, facts and circumstances.