What is Probate?

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robate is a division of the Superior Court of California that’s tasked with taking care of those who cannot speak for themselves. That would include the dead, intellectually disabled, and minors – all people who cannot legally speak for themselves. 

When you hear something referred to as being “in Probate” or “going through Probate”, what that most commonly refers to is the Court process where a Judge decides who gets what from the estate of an individual who passed away without a proper plan in place. 

Generally speaking, what “triggers” Probate is passing away with property in your personal name. There are, of course, exceptions to that depending on exactly what kind of assets they were, but that’s the general principle. When you pass away with property in your personal name, your estate can pass through one of two routes, depending on the gross value of your estate. 

If the gross value of your estate is under $166,250, it can pass through a more streamlined process involving some basic forms. This route is really not that big of a deal for family to get through, even though it will be a bit more of a headache than having a proper plan in place ahead of time. 

However, if the gross value of your estate is over $166,250, full Probate proceedings are required. That means many months (18-24 on average) for a Court to decide who gets what from your estate. The process is burdensome, bureaucratic, public (everyone will know your family business), and it’s expensive. 

To illustrate the cost, take as an example a person who passes away without a plan in place, and the only thing they own is a $500,000 home. Let’s also say they had a $400,000 mortgage on the home. You may initially think that since their equity in the home is only $100,000, we can pass this through the streamlined process. Unfortunately, that’s not the case as the Court looks at the gross value only, which here is $500,000. If that’s all the person owned, the fees to get through Probate would be a minimum of $26,000! That’s assuming no one is fighting, everyone agrees on who gets what, and the estate passes through Probate as quickly as possible. Half of those fees go to the attorney, and the other half goes to the person named to take care of the estate throughout the process. Those fees are set by law, and are a percentage of the gross value of your estate.

It’s more than just money, though, as you also lose control over your property if it goes through Probate. A Judge will be forced to decide who gets what, based on then existing California law, whether that’s what you would’ve wanted or not. It’s also whether it’s in the best interest of your heirs to receive the property at that time or not. 

Take the example of an 18-year-old, sole heir of a $1,000,000 estate. If the case goes through Probate and a Judge determines the 18-year-old is the rightful sole heir, the 18-year-old would be given the full $1,000,000 free and clear of any limitations or special provisions. For one reason or another, the likelihood of the 18-year-old using the money wisely or responsibly at that age is very slim, and it is probable that much of the inheritance would be squandered or swindled. This example is even worse when the beneficiary has an active creditor or is a special needs individual, as the repercussions can be even more severe. 

With all of the negativity around Probate, the positive thing is avoiding Probate is fairly simple to do. All that is needed is sound legal advice, a trusted advisor, and some planning ahead of time. If you’d like to make sure your estate avoids the Probate process, and that your heirs are left their inheritance in a way that’s most beneficial to them, contact our office today to schedule your free strategy session.

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