A reader recently reached out after his elderly mother died, asking how soon he could distribute the $10,000 she had earmarked in her will for each of her two grandchildren.
Because she lived in California, I had to break the bad news: He won’t be able to hand over the money any time soon.
Probate is the court process to distribute someone’s estate after their death, even if there is a will, and is notoriously slow in California. A typical probate takes nine to 12 months, and court shutdowns related to COVID-19 mean the wait could be longer. Probate is also expensive in California: By law, an attorney could charge $11,000 in fees to handle the woman’s $400,000 estate.
Probate tends to be less onerous in most other states, but the process still costs money and delays when beneficiaries can receive their inheritance.
Avoiding probate, however, also requires time or money and sometimes both. If you’re trying to decide whether to make the investment to spare your heirs the expense and hassle of probate, here’s what to keep in mind:
WHEN PROBATE MAKES SENSE
If you die with a lot of debt, probate can help by limiting the amount of time creditors have to make claims against your estate, says attorney Betsy Simmons Hannibal, a writer and editor at self-help legal site Nolo. If there isn’t enough to pay all your creditors, the probate court decides how much each creditor gets. Without probate, creditors may surface after your assets have been distributed and sue your heirs or the person who divided up your estate, she says.
Probate also provides court supervision, which can be helpful if you worry your wishes won’t be carried out. Your will and the details of your estate are made public, which is bad for the publicity-shy but also for greedy or contentious heirs who might otherwise disregard your will. All the assets, debts and costs paid by the estate have to be disclosed, and the court has to approve the distributions to beneficiaries.
“There’s going to be much more oversight, which can be useful in some situations,” Hannibal says.
SOME PROBATE ALTERNATIVES
States have simplified probate for smaller estates, which can reduce how long probate takes and its cost. What’s considered “small,” though, varies by state. In Delaware, it’s estates worth no more than $30,000. In Oregon, it’s estates $275,000 or less. (Nolo’s article “ Small estate probate shortcuts ” has links to each state’s rules.)
Those limits don’t include assets that can go directly to heirs, such as jointly held property and accounts that have a beneficiary. Retirement funds and life insurance usually require you to name a beneficiary, and you can also name beneficiaries for bank and brokerage accounts. (You need to name specific people or organizations, however. If you name your estate as your beneficiary, the assets typically must go through probate.)
Many states have “transfer on death” deeds for real estate, and some allow people to register their cars with a form that names a beneficiary. Both methods allow a property transfer without probate.
THE OTHER WAY TO AVOID PROBATE
You may not be able to divide your estate the way you want to simply by using beneficiary designations and “transfer on death” forms. Or you may want a more comprehensive solution, especially if you have a lot of assets or complicated finances.
Living trusts are the other way to avoid probate. Living trusts are legal documents that, like wills, allow you to detail how you want your property divided and who should care for any minor children. Unlike wills, living trusts take effect while you’re still alive. Once a living trust is created, you must transfer ownership of your property to the trust, which requires changing titles and deeds, to avoid probate. These trusts are revocable — you can change them at any time. You will be the trustee, so you continue to have control over your property, and you’ll name a successor trustee or trustees to take over if you become incapacitated or die.
Living trusts typically aren’t cheap to create, however. Lawyers usually charge $1,000 to $2,500, Hannibal notes.
You can create a living trust without an attorney using software or do-it-yourself legal sites, but consider consulting one if you have a large estate or foresee problems such as spendthrift heirs or people who might challenge your estate plan.
“If that’s your situation, your best bet is to go to a lawyer and say, ‘I anticipate trouble. How can you help me?’” Hannibal says.