Probate and Why Sometimes It's Necessary Even with an Estate Plan


Probate is a legal process that sometimes takes place after a person dies. It involves proving that the deceased had a valid will, inventorying the property that will be distributed, paying any outstanding debts or taxes, and then distributing the remaining property as the will directs. If there is no will, the property is distributed according to state law.

Probate involves court appearances as well as extensive paperwork. The fees incurred during the probate process come from the deceased person’s estate. Because of the cost of probate, most experts recommend trying to avoid the process. The fees involved can claim up to five percent of the estate’s value, in addition to tying up property for several months.

The good news is that there are several strategies you can use to avoid the need for probate. Here’s a short rundown:

  • A revocable living trust allows you to make an end-run around probate law by holding property in a trust that is not part of your probate estate. After your death, the trustee can easily transfer the property to the person you wish to leave it to without having to go through the probate process.
  • Converting bank accounts and retirement accounts to payable-on-death accounts also helps to avoid probate by ensuring money goes directly to your beneficiary when you die. This is done by filling out a simple form in which a beneficiary is listed.
  • Forms of joint ownership of property, including joint tenancy with right of survivorship, tenancy by the entirety, and community property with right of survivorship, allow your home and other real estate to go directly to the joint owner with no probate involved.
  • Giving assets to heirs as gifts reduces the size of your estate, which makes it likely that probate will be unnecessary.

Of course, sometimes probate can’t be avoided due to the complexity of the estate. For example, your heirs may have no choice but to go through probate if your estate leaves many debts that can’t easily be repaid from the property in your estate. If the beneficiaries in your estate don't cooperate with the executor, probate may be needed to resolve the disputes.

How Can We Help?

Please call our office at (626) 683-8113 or email us at if you are in need of assistance with your estate plan. Our experienced probate attorneys can help ensure that your interests are protected no matter what the future holds.