Alternatives To Probate
Summary Administration
In certain circumstances, some or all of decedent's assets may qualify for “summary probate,” “summary collection” or “set-aside proceedings.” These procedures shortcut what could otherwise be a lengthy and more costly formal estate administration.
InterVivos Trusts
An “inter vivos” or “living” trust is, as the name implies, a trust established during the lifetime of the trustor (grantor) or the lifetimes of multiple trustors (grantors). The most common inter vivos trust is a revocable trust, to which the grantors transfer all, or almost all, of their property for lifetime management. (Other such living trusts include irrevocable trusts of insurance and irrevocable trusts for the benefit of other family members, including short-term.
Generally, property held in an inter vivos trust is not part of the grantor's probate estate, unless the trust estate reverts back to the grantor's estate on his or her death. The property is not subject to probate administration even if the decedent-grantor was a life beneficiary of the trust or retained the unexercised power to revoke the trust.
Multiple Party Accounts
The California Multiple–Party Accounts Law governs “multiple-party accounts” (i.e., accounts with more than one signatory) at all “financial institutions” and industrial loan companies
In addition to providing methods for establishing, modifying and terminating multiple-party accounts, § 5100 et seq. codifies several presumptions regarding the nature of funds held on deposit in multiple-party accounts.
There are several factors that must be weighed to determine if your account is part of the probate estate.
TOD Security Registration
The California Uniform T.O.D. (transfer on death) Security Registration Act provides a method for registering securities and securities accounts so they may pass outside probate to named beneficiaries upon the death of the owner (or the last to die of multiple owners).
In addition to permitting nonprobate transfers of securities, similar to P.O.D. (pay-on-death) transfers of bank accounts, the Act's purpose is to protect issuers offering and implementing this form of title.
Joint Tenancy Property
“Joint tenancy property” is created by deed, will or other transfer to two or more persons in equal shares who are expressly declared to be “joint tenants.” Or, a joint tenancy may be created as to preexisting co-owned property by the co-owners amending the instrument of title to declare that they hold title as joint tenants.
The title designation or instrument of transfer typically states, e.g., “A or B as joint tenants”; and, although not legally necessary, often adds, “with right of survivorship” (below). (Sometimes the title is abbreviated as “JTWROS.”)
Joint tenancy title is a classic “probate avoidance” device. Unlike most other forms of co-ownership (partnership, tenancy in common, community property; joint tenancy implies a “right of survivorship”:
Each joint tenant's interest is coextensive with the others'; each interest automatically passes at death to the surviving joint tenants; and no interest in joint tenancy property may pass to decedent's creditors, heirs, devisees or personal representative (unless, of course, the decedent in question is the last remaining joint tenant).
Contact our office today to for a free evaluation.
In certain circumstances, some or all of decedent's assets may qualify for “summary probate,” “summary collection” or “set-aside proceedings.” These procedures shortcut what could otherwise be a lengthy and more costly formal estate administration.
InterVivos Trusts
An “inter vivos” or “living” trust is, as the name implies, a trust established during the lifetime of the trustor (grantor) or the lifetimes of multiple trustors (grantors). The most common inter vivos trust is a revocable trust, to which the grantors transfer all, or almost all, of their property for lifetime management. (Other such living trusts include irrevocable trusts of insurance and irrevocable trusts for the benefit of other family members, including short-term.
Generally, property held in an inter vivos trust is not part of the grantor's probate estate, unless the trust estate reverts back to the grantor's estate on his or her death. The property is not subject to probate administration even if the decedent-grantor was a life beneficiary of the trust or retained the unexercised power to revoke the trust.
Multiple Party Accounts
The California Multiple–Party Accounts Law governs “multiple-party accounts” (i.e., accounts with more than one signatory) at all “financial institutions” and industrial loan companies
In addition to providing methods for establishing, modifying and terminating multiple-party accounts, § 5100 et seq. codifies several presumptions regarding the nature of funds held on deposit in multiple-party accounts.
There are several factors that must be weighed to determine if your account is part of the probate estate.
TOD Security Registration
The California Uniform T.O.D. (transfer on death) Security Registration Act provides a method for registering securities and securities accounts so they may pass outside probate to named beneficiaries upon the death of the owner (or the last to die of multiple owners).
In addition to permitting nonprobate transfers of securities, similar to P.O.D. (pay-on-death) transfers of bank accounts, the Act's purpose is to protect issuers offering and implementing this form of title.
Joint Tenancy Property
“Joint tenancy property” is created by deed, will or other transfer to two or more persons in equal shares who are expressly declared to be “joint tenants.” Or, a joint tenancy may be created as to preexisting co-owned property by the co-owners amending the instrument of title to declare that they hold title as joint tenants.
The title designation or instrument of transfer typically states, e.g., “A or B as joint tenants”; and, although not legally necessary, often adds, “with right of survivorship” (below). (Sometimes the title is abbreviated as “JTWROS.”)
Joint tenancy title is a classic “probate avoidance” device. Unlike most other forms of co-ownership (partnership, tenancy in common, community property; joint tenancy implies a “right of survivorship”:
Each joint tenant's interest is coextensive with the others'; each interest automatically passes at death to the surviving joint tenants; and no interest in joint tenancy property may pass to decedent's creditors, heirs, devisees or personal representative (unless, of course, the decedent in question is the last remaining joint tenant).
Contact our office today to for a free evaluation.