Does a Living Will Avoid Probation in California?

Law professionals qualified in estate planning often hear clients ask, “Does a living will avoid probate in California?” and other similar questions. This area of estate planning can be somewhat challenging to understand at times. Don’t hesitate to consult an experienced Carlsbad estate planning law firm with any questions or legal counsel you need regarding your estate, living wills, trusts, advance health care directives, powers of attorney, and other related matters.

The Difference Between Wills and Trusts in CA

Estate planning is the area of law concerning a person’s estate, such as their:

• Real estate properties
• Bank accounts
• Debts and other liabilities
• Owned businesses
• Business investments
• Stocks and bonds
• Motor vehicles
• Art
• Antiques and collectibles
• Jewelry
• Intellectual property
• Any other personal property or assets

Creating an estate plan involves the individual deciding what will happen to the various portions of their estate after they have passed away. This can be done through one or more estate plan documents. Two common types of estate planning documents include a will, or “last will and testament,” and trusts, of which there are various forms. Two of the most frequently used types of trust are revocable and irrevocable trusts.

The primary difference between a will and a trust is that all wills must go through the process of probate, while trusts generally do not require going through probate. Even in instances where a California resident’s estate (or Californian property belonging to someone who lived out-of-state) is valued at less than $166,250, the small estate must go through a simplified, expedited form of probate, whether there is a will or no estate plan at all.

Why You Might Consider a Living Trust to Avoid Probate

The legal procedure of probate occurs shortly after a person’s death and entails:

• Ensuring that the person’s will is valid
• Identifying a person to act as the will’s executor
• Distributing the assets of the estate,
• Settling any debt by using estate assets
• Overseeing the deceased person’s last tax filing

Many people dread or want to bypass probate because the process can be very time-consuming and costly, with much of an estate’s wealth being subject to the expenses of probate court.

This is one of the main reasons why individuals opt to get a living trust instead of a will, or they may acquire a trust in addition to a living will and testament. All property put into a trust is exempt from any supervision by the probate courts regarding the distribution of its assets to its beneficiaries. A valid trust document appoints a trustee to oversee the settling of the trustor’s estate as per the deceased trustor’s outlined instructions, including specified deadlines or terms.

Do I Need a Living Trust or Will in California?

There’s no requirement to create a will or trust, but there are numerous benefits to having an estate plan in place. If you have a high-value estate or a large number of assets, establishing an estate plan can guarantee that your personal property is protected and managed according to your wishes after your death. Furthermore, if you have concerns about your loved ones arguing about inheritance or are otherwise worried about matters after you pass, having an estate plan can address any anxiety about the future.

Whether you should get a will, a trust, or both can be a challenging topic to parse, which is why many individuals opt to discuss the advantages and disadvantages of all estate planning options with a legal professional. An estate planning law firm can advise you on what may be ideal for your unique circumstances. For example, creating a living trust allows your family to avoid probate, but putting an entire estate into a trust can be costly for some people.

FAQs

Q: Does Getting a Will Prevent the Probate Process in California?

A: No, obtaining a living will doesn’t prevent probate nor allow a person’s family and beneficiaries to avoid going through probate. In the majority of cases, including when a person failed to create a will before their death, an estate is required to go through probate by law. If a person has both a will and a trust, all property in the trust is exempt from probate; this is also true for any assets that would otherwise be exempt from probate.

Q: Does a Living Trust Have to Go Through Probate in California?

A: No, a living trust doesn’t go through probate, meaning that any assets placed into a trust are exempt from the probate process. If a person puts all their assets into a living trust, their beneficiaries bypass the need for probate, and the probate court has no supervision over the distribution of the estate.

However, if someone simultaneously created a valid trust and a valid will, the property outlined in the person’s will is still required to go through probate.

Q: Does a Bank Account Have to Go Through Probate in CA?

A: Generally, the money within a bank account does have to go through probate unless the account meets one of the criteria for exemption from probate. If a bank account contains less than $166,250, names a beneficiary, or is jointly owned, it does not have to go through probate. Additionally, if the bank account was put into a living trust, it does not have to undergo probate, regardless of whether it meets any other qualifications or not.

Q: What Is Exempt From the Probate Process in California?

A: In California, property that is exempt from probate includes:

• Any assets within a trust
• An estate with a net value of less than $166,250
• Jointly owned assets
• Life insurance policies where a beneficiary is named
• Any bank accounts or other assets (e.g., pensions, 401(k)s, IRAs, real estate, personal property) that are “transferable on death,” “payable on death,” or have the “right to survivorship.”

Consult an Experienced Estate Planning Law Firm for Help

If you’re uncertain whether a specific asset is eligible for avoiding probate or if your estate qualifies for a trust, be sure to consult an experienced estate law professional. At the Estate Preservation Group, our professional team is ready to assist you with any estate planning matters or concerns you may have. Schedule a meeting with our firm today.