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Can Probate Be Avoided? – How to Avoid Probate

Yes. Most Families Will Want to Avoid Probate Cost & Survivor’s Hassles.

Avoid Probate - Probate Fees are set by the State of California and can have punitive results to people in all walks of life.Families can avoid Probate – There are several important reasons why you may wish to avoid probate. For starters, it is very expensive. A decedent’s survivors will have the awful hassles of probate court, court appearances, the 12 to 24 months of the tedious probate process where a low cost Trust could have made one’s passing a sad time – but without probate hassles. Moreover, the fees for probate are set by statute in California. For “ordinary services,” both the Executor and the Executor’s Probate Attorney each are entitled to compensation based on the total appraised value of the estate — not including any liabilities. Look at the follow California Probate compensation scale:

  • 4% of the first $100,000
  • 3% of the next $100,000
  • 2% of the next $800,000
  • 1% on the next $9,000,000
  • 0.5% on the next $15,000,000

How to Avoid Probate? – Consider using a Living Trust

So, how do you avoid probate? You have an experienced Probate or Estate Planning Lawyer create a Living Trust designed for your situation. If you can avoid Probate, your survivors will avoid the high Probate fees which are set by the State of California. The fees are base solely on the VALUE of the assets and do not take liabilities into consideration. Depending upon the circumstances “fairness” might go right out the window.

Expensive Fees Example #1 – California Probate Fee

Consider the following scenario. – Jim, aged 30, was an upwardly mobile new dentist. Jim used his platinum credit rating to leverage his buying power. Jim purchased a Newport Beach, California home with a peek-a-boo view of the Pacific ocean. While Jim’s credit was platinum, he had lots of expenses with his new dental office and almost $160,000 of outstanding student loans. Prudent and conservative lookers-on would suggest Jim was in way over his head, but like many Californians, Jim had confidence in his earning power and equal optimism of the value of real estate close to the ocean. Mortgage companies loved Jim’s profile and approved his jumbo mortgage. The loan had an amazing 3.6% rate on a $ 2.3 million dollar home with a mere 5% down payment of $115,000. Jim died unexpectedly. Jim had assumed, like 2/3’s of all Americans, that he had decades to worry about “estate planning.” In the following paragraph are the probate costs that Jim’s estate faces.

The Estate’s “Value” Establishes Probate Fees

Though Jim owned only a mere $115,000 of the lovely home, the probate fees to settle Jim’s estate are calculated on the $2,300,000 value of the property – not the huge liabilities! Jim’s estate owes the Probate Attorney $36,000 and the Executor $36,000, for a total of $72,000 in probate fees! It is not a stretch to speculate that a couple of well-drafted trust documents, which might have cost an affordable $2,500, would have avoided the $72,000 of fees and a year’s time for his surviving parents or siblings.

Expensive Fees Example #2 – California Probate Fee

Consider another scenario. – Carla, a single mom, scrapped and saved for 5-years and put a down payment of $25,000 for a small, but cute $250,000 starter home in Sylmar, CA. Carla died, leaving behind her 6-year old son and her retired mother who lives several miles away in Carla’s childhood home. Though Carla owned only $25,000 of her newly-acquired Sylmar house, the resultant probate fees were calculated on the value of the property, not her net equity.

Carla’s estate owes the Probate Attorney $7,000 and the Executor $7,000, the appraiser $250, court fees of $800, publishing fees of $200, for a minimum total of $15,250 in probate fees when Carla only had assets of $25,000 that was locked up in the “paper equity” of the house! Carla’s mother is stuck raising her grandchild, supporting a 2nd mortgage, hoping the vacant house can be rented during probate and looking at a year’s worth of expenses, uncertainty with virtually no “up side,” — an all that coupled with the heartache of her daughter’s passing.

So… Can we avoid Probate?

So the question people want answered is: “Can we avoid Probate?” Yes, avoiding probate should be a serious concern of anyone with any assets and a family. There are many reasons to avoid probate. One major drawback is that a probate will tie up the estate and the “heir’s” inheritance for 12 to 24 months. While the decedent’s estate is going through the long, drawn-out, probate process, the heirs may have to scramble, beg and borrow to fund the expenses. If there is not a reservoir of cash, the heirs still must find a way to pay ongoing mortgage payments, car payments, utility bills, property taxes, etc. If the decedent owned a business or was managing some sort of “accounts” or investments, the heirs might need some cash to keep all the balls in the air. There may be plenty of assets, but sometimes it is difficult to sell or liquidate the assets for cash before the probate is completed. A typical probate can average 12 to 18 months, resulting in severe financial difficulties for the decedent’s family or business associates.

Probates Can Drag On for 12 to 18 Months

The probate process is often a year or more of an emotional roller-coaster. Probates often require many conferences, exacting letters and documents to be crafted, numerous phone calls between the Executor and the Probate Attorney, with the net result of stress and significant time investments needed of the heirs. While, a funeral; a memorial; a graveside service, might add a couple weeks of stress following a death, the probate process can potentially drag on for 12 to 18 months. Probates get old: fast!

Most will Avoid Probate — However Can Be Right Choice for Some Unique Situations

Most individuals and families will want to avoid Probate. That said, the correct choice of estate planning solution for avoiding Probate should be discussed in full with a knowledgeable Southern California Probate and Estate Planning Attorney.  Probate, for some unique situations, such as a fractured, dysfunctional and bickering family, might offer the advantage of going through the probate process whereby an estate’s liquidation and disbursement is overseen and monitored by the courts which can step in and make decisions on disputes between heirs and also with any creditors. For most, however, the cost of probate coupled with the long and drawn-out process is outweighed by alternative instruments commonly and effectively used in administering an estate.

“Living Trusts” are the Best-Known Way To Avoid Probate in the Future

Can Probate Be Avoided? – Yes.”Living Trusts” are probably the best-known way to avoid subjecting your family to the expense and long, drawn-out hassle of probate court proceedings following your death. That said, there are several other good probate-avoidance techniques, which you can use in addition to or even in place of a Living Trust. The correct “estate planning instrument” that will be the best “fit” for you and your family will ultimately depend upon your unique circumstances.

How Does a “Living Trust” Avoid Probate?

The creator of a Living Trust transfers the ownership of their real property from themselves into a trust.  The creator and owner of the “trust” controls the trust and can routinely change or add to the conditions of the trust before his or her death.  Upon the death of the trust creator/owner, beneficiaries, spelled-out in the trust, become owners of the property of the trust. Moreover, trusts may have additional tax benefits that more than offset the cost to set up the trust in the first place! Finally, a trust, unlike a public probate, keeps your private financial and estate matters shielded from public scrutiny.

Probate Avoidance Lawyer in Southern California

At Vincent W. Davis & Associates, we pride ourselves on treating each client as an individual with specific and unique needs and goals.  Probate can be a correct legal tool for handling the estates of some individuals in unique circumstances, but for most life situations, just the math will make the case for an option to avoid the probate process. Moreover, options to probate offer people the added blessing of less cost, less stress on family and heirs, less time, privacy of ones family finances, and the peace of mind of having an inheritance bless rather than curse one’s survivors. Vincent W. Davis’ goal is to provide you with the correct estate planning procedures and life-documents that will work best for you.

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