Any estate that doesn’t have a trust goes through probate in California. Whether you have a million dollars or $50 million, if you haven’t taken care of the transfer of assets and property within an estate plan, you are going to wind up in Probate Court.
So, What’s So Bad About Probate Court?
Probate Court costs in California are usually based on a sliding scale percentage of the value of the estate. As such, you can end up spending many times more in probate on attorney’s fees and hard probate statutory costs than you would in preparing a trust.
In addition, when your estate goes through probate, you have a third party (Probate Court) making decisions about where your assets go and how. A trust, on the other hand, allows you to make a plan that an attorney and the trustee of your estate can follow to make decisions about your estate, all outside of the purview of Probate Court.
So, there are several strong reasons to avoid Probate Court, which you can easily do if you have a proper trust.
What Do I Do If An Estate Does End Up Going Through The Probate Process In California? Is Probate As Bad As Everyone Seems To Think?
In my opinion, Probate Court isn’t just as bad as people say it is: it’s worse. This is especially true now, as a result of two major issues.
Firstly, Probate Court is perennially underfunded and overwhelmed, making the experience incredibly long, cumbersome, and expensive.
Secondly, because of COVID, Probate Court has now gone partially remote, which further delays everything. For example, I have a matter in Probate Court that was settled over 24 months ago, with all the documents signed. We still haven’t gotten a final judgment from Probate Court on that matter. This is the sort of backlog we are talking about here. This is why you want to avoid probate at all costs.
What Are Some Of The Most Common Reasons That You See Probate Disputes Arise?
Probate often comes up where there is an incomplete or unfunded trust (since a trust has to have assets within it in order to be useful as a distribution vehicle).
Sometimes this happens because people have very old trusts that they never updated. Between the time the trust was set up and the present moment, the assets changed and are therefore no longer in the trust.
Another common reason we see behind incomplete or underfunded trusts is that someone decided to create the trust online or through some other self-help method. They usually do this thinking they’re going to save a few bucks in the short term, but they wind up in probate, which ultimately costs them lots of money in the long term. I would say around 60% of trusts that wind up in probate are there for this reason.
The other major reason that we see probate disputes are cases that we call “wild wills”. These are cases in which someone has a document that isn’t within the trust which allegedly mitigates or eliminates the trust. Usually in wild will cases, the person presenting the new document somehow coerced or manipulated the deceased person into signing the document before they died. This doesn’t happen very often with people that have maintained and retained legal counsel, because a lawyer is going to make sure that the trust is up-to-date and there’s nothing else out there that might jeopardize the elements of that trust.
What Are The Best Ways To Resolve Probate Disputes And Avoid Litigation In California?
One of the best ways to resolve probate disputes and avoid litigation is to have a thorough and comprehensive trust that details specific assets to specific people.
In California, you can decide that you don’t want a particular beneficiary to receive anything. We protect that decision is to make any dispute by any beneficiary voidable by anyone who contests the trust. Once we have this sort of thing in writing, it is very difficult to have the terms of the trust changed, even if the disputing beneficiary has outside testimony or oral promises or anything of that nature.
For more information on Avoiding Probate Process In California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (949) 287-5558 today.