Can you avoid probate if there isn’t a will?

By writing a will, you are telling the probate court how you want your assets and property transferred after your death. If you die without making a will in the state of California, your assets will go to your closest relatives under the intestacy succession laws found in the California Probate Code. This would include a spouse, children, parents, grandparents, or other closely related family members.

Similarly, if you have no living will providing instructions about your health care should you become incapacitated and have not named a durable power of attorney for health care to make decisions for you, then, once again, this decision-making power passes according to the laws of California.

Generally speaking, you cannot avoid probate court because probate will still be required to pay your bills and distribute your estate under the laws for intestate succession should you die without a will. However, there are ways that you can avoid probate if there isn’t a will at the time of your death.

Getting clarification

Joint tenant with the right of survivorship is one of the most popular estate planning options because it covers almost all types of property that you can own and helps to avoid the probate process. Avoiding probate court can save your heirs and beneficiaries the time involved in filling out forms and making required court appearances, the money for all of the associated fees and estate taxes, and any legal hassles that may arise in the distribution of your assets.

Joint tenancy with the right of survivorship (JTWROS) is a form of property ownership that permits multiple individuals to share property with equal rights. For example, many people own property jointly with a spouse. Automatic transfer occurs when a surviving owner’s name is on a deed, a car title, a bank account, life insurance policy, or other similar document.

Property that passes automatically to a surviving owner is referred to as “non-probate” property and is not subject to probate court under the Probate Code of the state of California due to the fact that a document exists which clarifies who is to receive it.

Probate assets that would still be subject to probate court would include those that are owned solely by you at the time of your death.

Working with an attorney

Joint tenancy with the right of survivorship for non-probate property is one option of avoiding probate if there isn’t a will. However, the only way that you can really avoid probate is by establishing a living trust. Living trusts allow you to designate how your assets are to be distributed, to set up healthcare directives, and more.

Working with a qualified estate planning attorney can help you understand the probate process, in general, and all of your options with respect to avoiding probate. If you need a probate attorney in San Diego, contact the Law Office of David W. Foley, California Living Trusts.

Our goal is to help our clients avoid the cost and time involved with the probate process for their families and beneficiaries.

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