Bay Area Estate And Tax Planning Law Firm

Changing a will not enough to avoid probate in California

On Behalf of | Mar 5, 2018 | Probate And Estate Administration |

When you consider how many people with significant estates die each year in California without a will, you may think you are well ahead of the curve just by having a will in place. In the grand scheme of things, this is true. You certainly are better off having a will than no will at all, but it is not enough to make your wishes known in a will if the underlying assets you name require additional documentation.

One of the most common problem areas for property owners who hope to avoid probate in California involves placing real property into a trust. It is not enough to list the property under the ownership of a trust in your will, you must also use a deed to transfer the property officially.

In these matters, it’s all about the details, and when the details are wrong, it opens your estate up to all sorts of challenges and drains on your resources. An experienced estate planning attorney can guide you through the process of defining and creating your estate plan, as well as ensuring that you complete all the proper documentation necessary to take advantage of the estate planning tools you choose. This attention to detail not only saves you or your beneficiaries time and money later on, it ensures that your rights and priorities remain protected.

Using deeds to transfer property in California

Like many other states, it is not sufficient to merely list ownership transfer in the will when it comes to real estate. Transferring real property requires a deed that makes the transfer official. If you do not create a deed each time you attempt to transfer real property, the transfer will probably not stand up to legal scrutiny and may open your estate plan up to challenges.

For instance, it is common to place real estate in a trust to circumvent probate. However, if you only list the property under a trust in your will and do not change the ownership properly with a deed, then the trust cannot protect the property, and it will pass into probate.

If this occurs, your beneficiaries or some other third party may make claims agains the property, depleting your resources further while the parties resolve the issue.

Even once a piece of property is placed in a trust, you may have some detailed work ahead of you. You may place the property in the trust well before you pass away, and may later realize that you want to change the terms of your will, or may want to refinance the property.

Refinancing the property often requires you to hold the property in your name. This may mean transferring your property out of the trust, back into your name for the duration of the refinance process, and then back into the trust once the refinance completes to keep it safe from probate. Each of these steps entails a deed to facilitate the transfer.

Don’t wait to protect your wishes

The sooner you take steps to address these issues, the sooner you have peace of mind and can focus on other, more pressing issues without placing some of your most significant assets in danger. Be sure to address your estate planning needs as soon as you can, taking special care to understand the details to keep your rights and wishes secure.