Probate is one of those areas of the law that few people know much about. The few who have heard about it can often have some very misguided ideas because they have heard myths or commonly repeated misperceptions from others.
Fortunately, probate is not too difficult to understand. The main problem most people have with it is that it’s really boring and not something anyone outside of probate law has much interest in dealing with. Nevertheless, the beliefs you might have about probate could come back to harm you if you act on them. Here are several commonly held myths and misperceptions about probate you should avoid.
All I have to do to avoid probate is write a will.
Probate is a word that describes the legal process involved when a deceased person leaves behind property to be inherited by others. Probate law determines the steps that have to take place in order for this kind of property to exchange hands.
As a capable adult, you have the right to choose your inheritances by stating your choices in a last will and testament. The will you write has to meet California legal standards in order for it to be valid. However, the only time when a court determines if a will is valid is after a person has died. In other words, you can’t simply make a will now and ask the court to determine if it’s valid. A court will only do this after you’re gone, and will only do this through the probate process. Your will, therefore, must go through the probate process in order for it to have any value unless you have a very modest estate.
Probate will last for years and will end up bleeding my estate dry.
Probate can last a long time and can involve some significant expenses. Depending on the county in which the probate proceeding is commenced and the complexity of the estate, probate can last from six or more months to years. Once the case is finished, all estate bills will be paid and your heirs will receive whatever inheritances are left over.
Since I can’t avoid probate, I don’t need an estate plan, much less a will.
Not only is this belief wrong, it can be very expensive for your family if you act on it. The reality is that though a will doesn’t typically allow you to avoid probate, there are other estate planning tools that can, such as a well prepared plan based upon a living trust. If you choose to create an estate plan now, the plan you create will allow your family to receive their inheritances more quickly, and allow your estate to keep more of your money to distribute as an inheritance.