Estate Planning
Probate & Probate Avoidance
California probate is a public, time-consuming, and expensive court process. Understanding how probate works — and how to avoid it — is one of the most important reasons to have a comprehensive estate plan.
Probate is the court-supervised process for administering a deceased person's estate — validating the will, appointing an executor, inventorying assets, paying debts, and distributing property to heirs. In California, probate is required for estates with assets above $184,500 (as of 2024) that are not held in a trust or otherwise structured to avoid probate. The process typically takes one to two years, is a matter of public record, and can consume a significant portion of the estate in statutory fees. For families in Lafayette, Lamorinda, and across Contra Costa County and the SF Bay Area, with proper planning, most families can avoid probate entirely.
How California Probate Works
California probate begins with filing a petition in the Superior Court of the county where the decedent lived. The court appoints an executor (if named in the will) or an administrator (if there is no will) to manage the estate. The executor must inventory all probate assets, notify creditors, pay valid debts and taxes, and ultimately distribute the remaining assets to the heirs. The process is governed by the California Probate Code and typically takes 12 to 18 months or longer for contested or complex estates.
The Cost of Probate
California law sets statutory fees for the executor and the attorney based on the gross value of the probate estate — not the net value after debts. For a $1 million estate, the combined statutory fees for the executor and attorney can exceed $46,000. For a $2 million estate, fees can exceed $66,000. These fees are in addition to court filing fees, appraisal costs, and other administration expenses. Probate avoidance is one of the most financially significant benefits of a well-structured estate plan.
Probate Avoidance with a Revocable Living Trust
The most effective way to avoid probate in California is to hold assets in a revocable living trust. Assets held in trust pass directly to beneficiaries at death, without court involvement, and are not subject to statutory probate fees. The trust administration process is private, typically faster than probate, and far less expensive. For most Bay Area families — where real estate values alone often exceed the probate threshold — a revocable living trust is the cornerstone of a sound estate plan.
Other Probate Avoidance Strategies
In addition to revocable living trusts, several other strategies can help avoid probate for specific assets: beneficiary designations on retirement accounts, life insurance, and annuities pass assets directly to named beneficiaries outside of probate; payable-on-death (POD) and transfer-on-death (TOD) designations on bank and investment accounts; and California's simplified small estate procedures for estates below the probate threshold. A comprehensive plan coordinates all of these strategies to ensure that no assets are inadvertently left subject to probate.
When Probate Cannot Be Avoided
Even with careful planning, some assets may end up in probate — property that was never transferred into the trust, assets acquired after the trust was created, or assets for which no beneficiary designation was made. California's pour-over will captures these assets and directs them into the trust at death, but they may still be subject to probate if they exceed the small estate threshold. Regular review and updating of your plan — including funding the trust with newly acquired assets — minimizes this risk.
Probate for Estates Without a Plan
If a person dies without a will or trust — called dying 'intestate' — California's intestacy laws determine who inherits the estate. The intestacy rules follow a fixed order of priority (spouse, children, parents, siblings, and so on) that may not reflect the decedent's actual wishes. The estate must still go through probate, and the court will appoint an administrator to manage the process. Dying without a plan is one of the most costly and disruptive outcomes for a family — and one of the most easily avoided.
Want to Avoid Probate?
Wagley Law helps families in Lafayette, Lamorinda, Contra Costa County, and the SF Bay Area structure their estates to avoid the cost, delay, and public exposure of California probate. Contact us to discuss how a revocable living trust and comprehensive plan can protect your family.
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