While estate planning buzzwords like “Probate Avoidance”, “Beneficiary” and “Property Transfers upon Death” are becoming more common, the understanding of these may not be fully realized. This article takes a closer look at a common phrase used by people performing research for their estate plan – “Probate Avoidance”. While this article lays out some of the stresses of probate court, it may only apply to those who do not have a solid estate planning instrument in place.
So in many cases with estate planning, consumers of Living Trusts and Wills in California are looking to transfer property to their loved ones as easily as possible. That is where the term “probate avoidance” comes into play. Many Californians will never see or attend any type of probate court hearing or proceeding. The thought of having to send their family into one of these to simply inherit their property seems like an undeserved punishment, and if avoidable, why not avoid it. Probate court carries a stigma, close to the defamed name of Family Law court, in the respect that horror stories often depict these proceedings as drawn out, unfair and burdensome. This is why some many people are trying to avoid this avoidable trauma and make sure their estate planning can help in that regard.
So what is so bad about probate court? With any court proceeding in probate court there are some consistent drawbacks compared to avoiding the process as follows:
Court Fees: There will be filing fees. These can be as low as $30 but typically in Riverside County currently are at a filing fee of $480 and that could be charged 2 times on a single case depending on the nature of the proceeding.
Mandatory Court Appearances: For most of the probate cases in California, a hearing or multiple hearings are set up for the court to review and make orders. These would usually require parties to be present before the Judge in an open and very public courtroom to discuss personal and private matters.
Third Party Fees: In many probate cases there are requirements for external publications, notifications, valuations and more. With each of these the Petitioner is responsible for paying these fees to third party entities as a requirement to keep the probate court cases moving in alignment to California Probate Procedure. Example would be a “Petition for Probate” which in Riverside County currently has a required newspaper publication at about $200, a required appraisal which costs a percentage of the estate and the minimum set at approximately $175+. Depending on the service you use, you may be left to do your own notifications and filing of proof of services in which a process server could charge hundreds on this aspect alone.
Public Record: As mentioned slightly above, court proceedings are often public record. This means that all documents filed in the case are available for anyone to print and take home copies. This could include personal financial documents, death certificates, Wills, the formal listing and valuation of assets and name and addresses of family members. Further, the court proceedings are open to the public meaning anyone who wants to come hear your case can do so at no charge.
Documents: Probate proceedings are very detailed and the court cases move forward based on the documents presented to the court. These documents must be accurate and specifically they need to meet the requirements of the California Probate guidelines and the local County court. Errors on these documents could have the case hearings continued, the distribution delayed, fines imposed on the Petitioner and more. Even the most educated of people can have issues understanding probate forms let alone completing them accurately for a Judge’s review. Just Document Preparation can help in these situations. Not all legal document assistants are created equal. We pride ourselves on perfection.
Attorney Fees: As the Petitioner you can save some of the headache by hiring an attorney, but in these situations attorney’s fees will have to be paid and come out of the overall share of the money to be distributed to the beneficiaries. Attorney’s fees are typically a percentage of the estate paid at the end of the process. It is not uncommon for these fees to reach in the tens of thousands of dollars.
With all of the above listed potential drawbacks of probate court we can see why so many people are trying to avoid it. Take a step further and imagine all of these stresses happening as you are mourning the loss of your loved one.
We can now see how important the term “Probate Avoidance” actually is. If you are researching your estate planning and determine that a revocable probate avoidance living trust is in your best interest we can help. We have been preparing these for Californians since 1996. We can typically have your trust completed and ready for signing in about 14 days. You can learn more about it here: Living Trust Service.