After you pass away, your assets will likely route through one of these four channels: Probate, Spousal Property, Probate Avoiders and Small Estates. One of the most challenging routes your assets may go through is Probate, which is a court proceeding to pass the deceased estate and property to their heirs. Let’s begin by defining the terms involved.

Executor: This applies to the person approved by the judge to sort out the Probate Estate, deal with debts, and distribute assets under court supervision.

Community Property: In general, this refers to any accumulated assets by a married person during the marriage while living in California.

Intestate: A person who dies without a valid will is called “intestate.” Meaning, the person has failed to name who will receive their assets.

Probate Estate: This refers to all assets held in the name of a deceased person on the date of death that do not have a Probate Avoider in place.

Probate Avoider: An arrangement created by a person during his or her lifetime that removes an asset from his or her Probate Estate.

Separate Property: These are assets owned before the marriage or inherited during the marriage.

Trustee: The person named in a trust document to be placed in charge of trust assets and their distribution.

Now that we have the basics defined, here are the arguments involved in many common probate debates. Arguments in favor include:

• Can be a way to sort out planning document ambiguities and defects to resolve conflicts
• Can provide valuable court supervision
• Can provide an expedited way to deal with creditors

Arguments made against using probate:

• Can be more time consuming than other approaches
• Can be less private
• Can be more costly

The cost of probate is often the biggest point of conflict in these circumstances. As a general rule based on California statutes; the larger the Probate Estate (based on gross value), the smaller the fee as a percentage of the Probate Estate that will be doled out to the attorney handling the case. California law provides for relatively straight forward passing of community property to the surviving spouse- normally without court proceedings. But for separate property going to a surviving spouse, an expedited, lower-cost court proceeding called a “spousal property petition” is available.

By acting during your lifetime, you can create Probate Avoiders by completing the necessary paperwork to name one or more beneficiaries that will receive assets after your death. Remember to keep the beneficiary naming up to date and include life insurance, IRAs, 401(K)s and annuities in mind when doing this. Your family will thank you for having the foresight to plan ahead and give them direction after your passing.