Take 10 steps and avoid probate

by Oakland Lawyer

Most people think that the only way to avoid probate is to have a Trust.  To a lot of people that means hiring a lawyer and spending money they can’t afford.  After Prince died without a will, there was a lot of discussion of how not to be like Prince.  So after doing some research I made a list for my friends of all the things they could do, in California, to avoid that situation.

1. List beneficiaries, including contingent beneficiaries, on all your bank accounts.  Ask your bank, credit union, or other financial and complete a transfer on death form, also know as a pay on death (POD) transfer form.
2. List beneficiaries, including contingent beneficiaries, on all your retirement accounts.  This can include, but is not limited to, individual retirement accounts (IRAs), mutual funds, stock accounts, and 401K accounts, for example. 
3. List beneficiaries, including contingent beneficiaries, on all your personal property.  This can include, but is not limited to, cars, boats, and motorcycles for example.
4. Make sure your list of beneficiaries, including contingent beneficiaries includes people likely to be alive when you die; whether today or in 50 years.
5. If you own property with someone else on the deed, confirm that your deed includes language that they or you will automatically become the owner upon each others death.  This language can include, but is not limited to, “with right of survivorship,” “tenancy by the entirety,” or “community property with right of survivorship.”
6. If you own property alone, file a Transfer on Death Deed with the County Recorders office.  In California, TOD deeds went into effect in 2016, after enactment by the legislature in 2016.  The program is set to sunset after 5 years, but any deeds recorded in that time, will be effective if the law is not extended. Many other states had this procedure for many years.
7. In California, we have small estate procedures.  If the estate is less than 150,000, you avoid probate.  For many folks, once they have followed steps 1 through 6, anything left will likely be less than that.
8. Give things away while you’re alive.  If you don’t own it when you die, it doesn’t go through probate.
9. Give yourself a life estate.  A life estate is an interest in real property (i.e., your house).  If you give your house away today, you can also give yourself the right to live there until death (a life estate).  At death, transfer is a matter or law and not part of probate.
10. Lastly, you can always put everything you own into a Trust and that will avoid probate.