Scott N. Carter discusses how to avoid probate in California by setting up proper estate planning documents.
What is Probate?
The process when someone passes away, if you die without a trust, or you die with a will or without a will, you are going to go through what is called probate. The probate process is the transfer of property from the estate to the beneficiary.
The most popular and the main way most Californians avoid probate is through what is called a revocable living trust. We set up a trust that allows the parties to name a trustee and bypass the court process of probate.
In order to do that they have to actually fund (F U N D) fund the trust with the assets to avoid probate. Once that is done it accomplishes a couple of things.
How to Avoid Probate | The Purpose of Trusts
- It is going to avoid probate which is very time-consuming; and
- It can avoid what is called a conservatorship
A conservatorship is when someone becomes incapacitated they must go through the court process to have their estate supervised.
Misconceptions About Trusts and Probate
Most people believe that if I am married and my spouse will take care of me then I don’t need to go through court. But that is incorrect. Even though you are married to a spouse, the spouse would actually have to go to court to become appointed as the conservator and have the court supervise everything they do.
In fact, they have to come back to the court after they get a conservatorship after one year and every other year thereafter of the incapacitated person’s life to report back to the court and do a complete accounting. This is very cumbersome and very bothersome to a surviving spouse or to children if they are doing it for a parent or a relative.
The two gigantic advantages of a trust are:
- Avoid Probate
- Avoid a conservatorship
Scott N. Carter is a partner in a boutique San Jose law firm, Carter, Dougherty & McGuire. The firm’s business principles are driven by the needs of its clients. They are certified specialists in taxation, probate, estate plan, and trusts.
Scott can be reached at 408-241-2121.