In California, you can create a living trust to avoid legalizing virtually any asset you own: real estate, bank accounts, vehicles, etc. You can create a trust document, naming yourself as the trustee and someone who assumes the position of trustee after your death (called a successor trustee). The simple fact of having a last will does not prevent succession; in fact, a will must go through succession. To legalize a will, the document is filed with the court and a personal representative is appointed to gather the decedent's assets and take care of any outstanding debts or taxes.
The personal representative can then distribute the deceased's assets to the heirs. But is there a way to keep a person's assets out of the court system? Yes, skipping the will and drafting a living trust. A trust is a document that already handles the distribution of property and other assets by placing them in a jointly owned trust with family or close friends who will manage the estate once the person dies. Trusts usually cost a fraction of the price that the probate process will cost, and they also save time and unnecessary stress when handling the affairs of a deceased person.
In California, you must create a trust document (it is similar to a will), naming someone to assume the position of trustee after your death (called a successor trustee). So, and this is crucial, you must transfer ownership of your property to yourself as the trustee of the trust. Once all this is done, the property will be controlled by the terms of the trust. Upon your death, your successor trustee may transfer you to the beneficiaries of the trust without the need for an inheritance court proceeding. Succession is the court-supervised process of liquidating a decedent's estate and distributing his or her property to heirs.
Many Californians are at least a little puzzled with regard to the probate process, which is a legal process through which a decedent's assets are distributed according to a will or, in the absence of a will, through California probate laws. There are several cases and reasons why a will may not have to go through the complex probate process. An estate and tax planning lawyer can help you protect your assets from the Massachusetts estate process and estate tax. Establishing and funding a revocable living trust is one way to avoid probate. The assets that are placed in your living trust can be used while you are alive, but when you die they pass to the beneficiaries of the trust you have named without legalization.
Not only does it avoid unnecessary and costly intervention by a probate court, but it also protects and distributes your estate according to your plan. If you die without making a will in California, your assets will go to your closest relatives under the laws of intestate succession found in the California Probate Code. Failure to go through probate may result in you being held personally responsible for any expenses that result. Many people have heard that they should avoid succession at all costs, but they have misconceptions about what that means. There are many misperceptions regarding succession, especially that by avoiding succession, estate taxes are avoided and that inheritance is only required when someone dies without a will. Probate assets that would still be subject to probate court would include those that are your exclusive property at the time of your death. Property that automatically passes to a surviving landlord is known as “non-testamentary property” and is not subject to probate court under California State Probate Code because there is a document that clarifies who will receive it. Some actions to avoid probate are quite simple, but others may require help from an attorney experienced in estate, tax, and estate planning.
Attorneys at Favaro, Lavezzo, Gill, Caretti & Heppell, PC can determine how to avoid probate for their beneficiaries in a way that makes sense for their unique circumstances.