Fact Vs. Fiction: Debunking Common Myths About California Probate

In this article, you can discover…

• The benefits of having a will in place in California
• Whether your spouse will automatically inherit your estate when you pass away
• How an attorney can clarify your misconceptions and guide you through estate planning

Does Having A Will Prevent Probate In California?

Having a will in California does not prevent probate, especially if the value of your assets exceeds $184,500. In this situation, your estate will likely need to go through probate to distribute assets according to the will.

A will provides instructions for how assets should be handled but doesn’t bypass the legal process. You will do well to consider creating a living trust. It would allow assets to pass directly to beneficiaries without the delays and costs of probate, offering you and your loved ones greater privacy and efficiency.

If I Don’t Have A Will In California, Will The Government Get All My Assets?

If you don’t have a will in California, the government typically will only take your assets if it cannot find any legal heirs. This is much more a rare situation than you might suspect. Instead, your estate will go through intestate succession, a process where the state distributes your assets according to a predetermined legal hierarchy, starting with close relatives like a spouse or children.

That said, not having a will means your assets will be frozen until a probate process begins. Probate is a public process and is potentially lengthy—often two or more years—and expensive, with legal fees and court costs that could significantly eat into the value of your estate.

Is It True That Probate Fees Are High In California, So Much So That They Will Consume Most Of My Estate’s Assets?

Probate fees in California can be high, but they won’t necessarily consume most of your estate’s value. California uses a statutory fee structure based on the estate’s gross value, below. It does not account for debts like mortgages.

• 4% of the first $100,000
• 3% of the next $100,000
• 2% of the next $800,000
• 1% of the next $9 million

For example, if your estate has a gross value of $500,000, the combined attorney and executor fees would total $26,000. Mind you, if you own real estate, the value is counted, not your equity in the property.

Ranvir Sandhu, an experienced attorney at Insight Legal in California, specializes in estate planning and probate matters, helping clients protect their assets and avoid common pitfalls. His proven track record of guiding clients through creating wills, trusts, and comprehensive estate plans means your wishes will be honored and probate complexities become a non-issue. Known for personalized solutions, he has helped countless secure their legacies with clarity and confidence.

Contact Ranvir Sandhu today to discuss strategies for safeguarding your estate and providing peace of mind for your loved ones.

Is It A Myth That My Spouse Will Automatically Inherit My Estate When I Pass?

It is indeed a myth that your estate will automatically pass to your spouse. California is a community property state, so anything earned during the marriage is split 50/50. Gifts or inheritances received before or during the marriage, on the other hand, are considered separate property. A consequence of this is that each individual has their own separate estate. However, that asset can be transmutated (changed) based on the actions of the owner (i.e. retitling to joint, assigning assets to the other, the spouse contributing to separate property, etc.)

For example, real estate may pass to the surviving spouse depending on how the title is held. If the title is held by husband and wife as community property with the right of survivorship or husband and wife as joint tenants, the surviving spouse can inherit the entire property. However, not all assets transfer automatically in this way, and a will and trust can ensure the proper distribution of your estate.

Is It True That The Probate Process Can Take Years To Finalize?

Probate in California can potentially take two or more years to complete. The duration largely depends on the complexity of your estate and the number of people involved. If there are disputes over a will or trust, the process could extend even longer as lawyers may be involved.

What Are The Most Common Misconceptions People Have About Probate In California? How Do You Address These With Your Clients?

Many people mistakenly believe that probate is straightforward, inexpensive, and guarantees that their assets will go to their spouse or children. However, that is not always the case. To avoid probate, I recommend setting up a revocable trust.

While a will is important—especially for naming guardians for minor children—it often acts as a backup. We typically use pour-over wills, which direct any assets not already in the trust into it upon death. These wills also name the executor of the estate and guardians for minor children.

I always advise speaking to a qualified, licensed attorney rather than relying on any online, seminars from salespeople over the weekend with free breakfasts and/or DIY tools. More often than not, they fail to provide you with the necessary guidance on how to handle real estate and properly fund a trust, both of which are crucial for avoiding probate complications.

Still Have Questions? Ready To Get Started?

For more information on Fact Vs. Fiction, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (510) 916-2100 today.