Probate is a court supervised process which is required of many estates after death. It is the means by which property is passed on to one’s heirs. You may have noticed that there are a number of attorneys advertising ways to avoid probate.

Probate can be explained as follows:

Probate is a lengthy process

Probate involves a court proceeding that requires the filing of numerous forms and documents and is meticulously supervised by the courts. The probate of an estate usually lasts more than six months and may take years. During that time, property you owned together will be tied up and you may have restricted or no access to important funds and accounts. The sale of property may be complicated by the need for court approval of the terms of sale.

Probate can be expensive

Both the executor and the attorney for the estate are entitled to be paid fees for their work during a probate. While their fees are regulated by the state, they can be considerable and unnecessary.

For example, the fees in an uncomplicated estate that is worth $150,000 will be about $4,150 for the executor and the same amount for the attorney.

The following table sets forth the new California statutory fee schedule for the Executor of the estate and the attorney for the estate.

Additional fees are added for such things as the sale of assets, tax matters or other extra activity. Please use the Probate Fees Calculator in this website to calculate the fees for a particular size of gross estate.

Should I Plan to Avoid Probate?

The answer to that question is probably yes. Exceptions would be where there would be some value in having a court oversee the process of distribution of your estate, such as where there is a question of the decedent’s competence or whether the decedent’s wishes will be carried out. If you have questions about this decision, discuss it with an attorney.

Some effective ways of avoiding probate of an estate are discussed below. If your property fits in any of the following categories, you may be able to avoid probate in these specific situations under California law:

Living Trust

See the discussion of living trusts elsewhere for more information about this device for avoiding probate.

Joint accounts

By holding accounts in joint form, the title to the account automatically transfers to the survivor without undergoing the probate process.

Estates Of Less Than $100,000

If your estate is below $100,000 and there is no real estate, there is a simplified procedure for handling the estate after death. Automobiles do not count in the $100,000 limit and there are several other exclusions that make this a useful approach for many people. There is an affidavit (California Probate Code Section 13100) to complete and much of your property can be transferred in this way.

Real Property Less Than $20,000

If the gross value of all real property in California is worth less than $20,000, it may avoid probate and can be transferred by a "Affidavit Re Real Property of Small Value" (California Probate Code Section 13200).

Motor Vehicles

A simple, non-probate procedure is available to transfer title to automobiles and registered boats in California.

Where there is no other property that needs to be probated, a person named in a Will or an heir of a deceased person can complete a declaration and submit it to the Department of Motor Vehicles in order to transfer title to a registered motor vehicle from the deceased to themselves.

This same method is used when the vehicle was transferred to a living trust. A form for this purpose is available from the DMV. You will have to present the registration form as well.

Mobile Homes

The procedure to transfer title to a registered mobile home is similar to that for a motor vehicle. The form to do so is available from the California Department of Housing and Community Development. You must wait for 40 days after death to use this procedure.