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How Common Is It For People To Not Have A Trust In Order To Avoid Probate?


The majority of people who have assets that are subject to probate do not have a trust. It is actually more common than having a trust.

Is Probate Unavoidable If Someone Dies Without Creating A Trust?

Probate cannot be avoided, but there are some methods of transferring assets other than a full formal probate, which can be used, depending upon the specific assets, titles, and the value of those assets.

What Are Some Ways To Avoid Probate When Someone Passes Away Without Creating A Trust?

If there are assets that are subject to probate when someone has passed away, we can look and see if one of these other methods will work. One is a spousal property petition. If the assets are going to a surviving spouse, there are a couple of different types of small estate procedures for these assets. However, the values are less than the value required for probate.

The required amount for a probate is $150,000. Anything over that in gross assets would require a probate, but if the assets are less than that, we do have a couple of options to transfer them. There is a small estate affidavit. It is either a petition for real property less than $50,000, and a petition for all estates under $150,000.

What Are The Specifics Entailed In The Spousal Property Petition?

Spousal property petitions obviously have to be filed by a surviving spouse, or registered domestic partner. They have to show that they are somehow entitled to these assets. They must be the surviving spouse’s separate property, or the surviving spouse and the deceased spouse held the assets as community property.

Another way is that the deceased spouse had a will naming the surviving spouse as the beneficiary of their estate. If they can show one of these ways that the assets had the deceased spouse’s name on the title, then they can have that title transferred to the surviving spouse in a relatively simple summary probate. This is a probate which requires only one hearing, rather than the typical probate, which can take eighteen months to two years, or more.

What Is Joint Tenancy And How Does It Apply To A Situation Where A Spouse Has Passed Away Without Setting Up A Trust?

Joint tenancy is a method of holding title to assets in which two or more people hold the title together, and they agree that upon the death of any of the owners, that owner’s interest terminates, and their interest just ceases to exist. The remaining interests of the other joint tenants continue, though. For example, if a husband and a wife hold an asset in joint tenancy, when one of them dies, their interest really does not transfer to the surviving tenant, their interest just terminates. It ceases to exist, leaving the other joint tenant as the sole owner.

Because there is not a transfer involved in a joint tenancy situation, there is no need for court approval, and so we do not have to do anything within the court system. No full probates, no summary probates, no affidavits, nothing needs to be done. The death certificate of the deceased joint tenant is sufficient to remove them from the title, giving them sole ownership to the surviving joint tenant, or surviving joint tenants.

Does The Spousal Petition Apply To Same Sex Married Couples As Well?

Yes, the spousal petition does apply to same sex marriages. All of the laws for inheritance, and probate that apply to spouses apply equally to same sex spouses. There is no differentiation in the laws anymore.

What Is The Small Estate Affidavit? Who Can File It?

A small estate affidavit is for claiming personal property. Personal property would be anything other than real estate. It could be bank accounts, insurance proceeds, or cars, any of these kinds of assets. However, this procedure may only be used if all of the probate assets for the decedent are under $150,000 in total. The small estate affidavit can be completed either by the beneficiaries of the estate, or by the executor, if the decedent had a will. It states several things: among them is a statement that at least forty days have passed since the date of the death; that the estate is valued at less than a $150,000; and that everyone who is entitled to distribution has signed this document, or the executor of the estate is executing it.

The affidavit must be signed and sworn in the presence of a notary public, and by itself, it has the authority to transfer assets. It does not need to be submitted to the courts. It is given directly to the custodian of the assets. Whoever has control of those assets receives this affidavit. They are obligated under law to transfer those assets to the beneficiaries.

For more information on Avoiding Probate In California, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (626) 385-6303 today.

Newell & Havens Attorney At Law

Call for a free assessment of your needs
(626) 385-6303.

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