August 27, 2012   Estate Planning

If You Can Find a Way To Avoid Probate, Do So

By Daryl Binkley, Esq.
how to avoid probate “There’s hell, and then there’s probate.”
J.J. CHILDERS
From his book “Asset Protection 101”
 
To me this is a joke that makes me smile and cringe at the same time.  In the text, Mr. Childers goes on to add that “thanks to the probate process you probably wouldn’t wish the job of executor on your worst enemy.”  Yet individuals who have a modest amount of real property titled in their name alone, and procrastinate away their estate plans, will lead their loved ones straight to a government-imposed estate plan in a system, that’s well, a hell.

While the joke may seem exaggerated and extreme, it certainly rings true for people I talk to who have experienced nasty probates, especially contested probates.
               
In my practice, the topic of probate brings up a lot of concerns by people who come to meet with me, in fact, questions about probate are some of the most common ones I receive.  Some people have no idea about what probate involves, others have experienced it first-hand and become quite versed in the procedure.  I find that many people know enough that they want to avoid it but then have some misconceptions as to what will avoid a probate.

First, as already stated in the opening paragraph, if you have a modest amount of real property in your name alone, for example, a house worth $120,000, then having no estate plan means you have opted for the government’s plan of distribution – probate.  So if you think you have no estate plan, that’s OK, the government substitutes one for you – formally called probate.  However, if you are the same individual with the same home, but have formalized your estate plan with the use of only a “will” the guess what – you still will have a probate.
 
Misconception about wills
From my experience, I find many people expect that a will will avoid probate.  A will will not.  I like to clarify the misconception with my own joke – that if you are single and have modestly valued real property titled in your name alone (i.e. as an individual), then generally speaking, having a will alone is like having front-row tickets to the probate court.  Of course, as most of my jokes, it is not that good, and the reality is much worse.
               
If you have never heard of probate and are not sure what it is – the simple explanation is that it is a government process or system administered through the courts that helps in the orderly distribution of your assets after you have passed away (of course making sure that creditors and various governmental agencies get paid, too).  The probate plan works if you do not have an estate plan (assuming you have assets of a certain value and titled in your name alone), but it even controls estates where the decedent left only a will as their main estate planning document.
               
Some states are considered probate-light, where the fees related to probate and procedures are not as extensive and time consuming, at least so I have heard, but California is not one of them.
 
Four things you should know about probate
1.        Cost:  Probate costs are based on the size of the estate, and there are statutory fee schedules for attorneys and executors to charge certain amounts, and on multimillion-dollar estates, legal fees are usually held to a “reasonability” standard.  Of course, there is an opening for “extraordinary” legal costs when contests come up.
2.        Time:  For estates with a modest amount of assets, a probate can easily take two years or more, and even longer if a contest arises.  Hopefully, if you have a smaller estate and have no disputes, then maybe a probate could be relatively quickly at a year to 18 months.  Recently, I met with someone that has been going through a probate almost the last 10 years because of contests.  The legal fees in these contests reduces the amount that your heirs will eventually receive.
3.        Loss of control:  A judge you have never met or who doesn’t know you or your family will be ultimately making decisions as to how your assets would be distributed.  As we all know, someone might look great on paper and might seem like the obvious choice to be an heir of your estate, but it may not be the person you would choose to receive your assets.
4.        Loss of privacy:  Your family matter (think “dirty laundry” in the soap opera context) and potentially the extent of your assets could become part of the public record.
 
Four tips on avoiding a probate
1.        Trusts:  Generally the most efficient and the most recommended way of avoiding probate is through the use of a trust.  There are costs associated with creating a trust and administering a trust but these are usually significantly less than the costs of a probate.
2.        Proper titling:  Titling assets in a non-probate form, generally married couples have a lot of options to avoid probate if one spouse passes away – of course, the danger to those forms as if both spouses are killed in an accident at the same time – two probates!
3.        Gifts:  Gifting your assets during your lifetime.
4.        Live forever!
Of course, California is trying to do more to make probate a more effective system, but why not just avoid it, if possible?
                                                                                                                                                                                                                                  
About the Author
Attorney Daryl Binkley provides highly personalized estate planning counsel to couples, families and individuals. Daryl earned his Bachelor of Arts from the University of California at Berkeley and Juris Doctor, cum laude at Pepperdine School of Law in Malibu, California. You may have seen Daryl in the U.S. World and News Report, California Lawyer Magazine, The Desert Sun, the Public Record NBC KMIR6 - Channel 6, KPSP- Channel2, KPSE My 13 - Channel 13. You can find out more at www.binkleylaw.com or reach Daryl at daryl@binkleylaw.com.
 
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