2 Documents to Keep Yourself Out of Probate Court
California's Probate Courts oversee more than just the transfer of a deceased person's property to their heirs when they have died. If you have not planned for the possibility of your own incapacity, the Probate Court will be there to appoint someone who can oversee that your property and/or health are taken care of (this person is a conservator) when you cannot do it for yourself. Of course, the need to involve a court in these areas of your life will cost you both money and privacy.
If you prefer to save some time and money plus you dread the idea of your mental health or financial information being discussed in open court, you are not alone. Fortunately, if you are proactive, there is a solution that can keep you out of Probate Court.
A Very Brief Explanation of Court Interference
Two of the most common situations in which the Probate Court becomes involved in your personal affairs are conservatorship and probate:
If you were to ever experience mental incapacity (such as dementia or you are in an accident and can no longer speak for yourself), you would need someone to step in and take care of your finances and your health. If you have documents in your estate plan that will direct a trusted person to carry out your wishes for such a situation, you can avoid a court interference of your affairs. However, if no documents have been drafted, then your personal affairs must be handled with the oversight of a judge. A court proceeding called a Probate Conservatorship will be held to appoint one (or more conservators) who can then manage your financial affairs and health care because you cannot.
When you die without a Trust, your property (also known as your estate), will need to be put in Probate in order for the legal title to be changed into the name of your heirs. During the Probate process, the court decides if your Will is valid; appoints someone to speak on your behalf and to do all the leg-work; it oversees the gathering of the probate assets and payment of any outstanding debts; plus, the court determines who your heirs and beneficiaries are. The proceedings ultimately determine who should receive the assets that are left after payment of debts, taxes, and costs.
Free Your Estate with These Two Documents
In order to avoid a conservatorship and probate, you can work with me to keep your personal affairs out of court entirely.
Powers of attorney
Agents (or attorneys-in-fact) are the individuals or private professional fiduciaries you appoint to make medical and/or financial decisions for you. You designate agents ] in a document known as a power of attorney. Durable powers of attorney are documents that continue in validity after the incapacity of the maker of the document (i.e. “durable” against incapacity). Since a durable power of attorney continues in validity, a durable power of attorney can help bypass the need for court-appointed conservatorships.
Trusts are agreements that hold some or all of your assets. Unlike Wills, Trusts do not go through probate. There are several types of trusts, and I draft Trusts that are best suited to your estate and unique situation. By setting up and completely funding a Revocable Living Trust, you can accomplish two important things. First, you can rest assured that your assets will be distributed to your chosen beneficiaries and won't go through probate upon your death. Second, you also retain the ability to change or cancel the arrangement during your lifetime, enabling you to adjust your plan as your financial or family circumstances change.
Make Sure Your Estate Plan is Court-Proof
Deciding on appropriate powers of attorney and drafting revocable living trusts are just two of the many steps we can take together to keep your affairs free from court involvement. With a solid estate plan put into place with the help of a trusted attorney, you can take comfort knowing that everything you've worked so hard to build and maintain will be passed along to only the people who matter most.
Let's start a conversation so you can learn more about “court-proofing” your estate plan.