How Can You Avoid Probate of Real Property?

Updated on October 17, 2023

Probate can be a complex and time-consuming legal process that individuals often seek to avoid when it comes to their real property. It involves the court-supervised distribution of assets after a person’s death, which can be both expensive and emotionally challenging for surviving family members. However, with proper estate planning, it is possible to bypass probate entirely, ensuring a smoother transition of real properties to loved ones.

What strategy can be employed to avoid having to go through a probate of real property? Probate can be a time consuming and expensive property that most people wish to avoid.  With proper estate planning real properties can avoid probate altogether.   

Wills and Probate of Real Property

Wills are subject to the judicial probate process, which can be lengthy, expensive, and requires court supervision. (1 Cal. Transactions Forms–Est. Planning § 1:8 [“Wills are not effective during life, and generally lead to probate at death.”].)

Many individuals wish to spare their surviving family members from this stressful process, particularly since family members are grieving.

Thus, most people want to avoid probate altogether, particularly for real property so that a decedent’s estate can be distributed to love ones without having to involve the court system and costly attorneys.  (Id. [“Revocable living trusts are effective during life and generally lead to probate avoidance.”].)

Trust to Avoid Probate

Avoiding probate is typically the same process as avoiding probate for a decedent’s estate by using a revocable or “living” trust.  To do so, title to real property is typically held by the trustee(s) of the revocable trust, and not by the individual.  (§ 11:66. Generally, 4 Cal. Real Est. § 11:66 (4th ed.) [“The trustees, not the trust itself, hold record title to trust property.”].)

When the title to real property is conveyed to the revocable trust the trustee of the trust or the successor trustee can then transfer the property upon the death of the creator of the trust (the original creator/trusto) via instructions left by the original trustor.   (Id.)  The reasoning behind this is that since no individual person owns the trust, probate is not necessary because the trust is not extinguished upon an individual’s death.

The trustee simply changes and can follow the original trustor’s instructions in distributing the property.  A trust is almost like a contract with oneself where the creator of the trust is allowed to dictate what happens to their property after their death.

Living Trust Advantage

Additionally, the advantage of a living trust is the first trustee is the trust’s settlor, which allows that person “during his or her lifetime, to amend the trust and change a beneficiary.

Additionally, entities such as corporations, limited liability companies, and unincorporated associations may hold and convey property.”  (Id.)  Thus, until the time of trustor passes away, the trustor is free to control the real property as he or she wishes.

Many homeowners unfortunately miss the opportunity to clarify their complex matters on paper, and when they die, costly disputes arise between beneficiaries. Probate cases happen often and require a certain level of care and attention that legal representation can help with.

If you are looking for consultation or representation, the California attorneys at Schorr Law have years of experience with trusts, probate and many other real estate matters. Contact us today to find out if your matter qualifies for a free 30-minute consultation. You can give us a call at (310) 954-1877. You can also text us at (310) 706-2265, or send us a message here.

Key Takeaways: How To Avoid Probate of Real Property in California?

1. Probate and Real Property: Probate is a legal process that involves the validation of a will and the distribution of a deceased person’s assets, including real property, under court supervision.
2. Challenges of Probate: Probate can be time-consuming, expensive, and emotionally taxing for family members, especially when they are already dealing with the loss of a loved one.
3. Estate Planning: Proper estate planning is essential to avoid probate. One effective strategy is the use of a revocable or “living” trust.
4. Living Trusts: Living trusts allow individuals to transfer the title of their real property to a trust, with the trustee(s) holding record title. This means that the property doesn’t need to go through probate upon the individual’s death.
5. Trustee’s Role: The trustee of the living trust, or the successor trustee, can distribute the property according to the instructions left by the trust’s creator (the trustor). This eliminates the need for court involvement.
6. Flexibility: Living trusts offer flexibility, as the trustor can amend the trust and change beneficiaries during their lifetime.
7. Corporate Ownership: Living trusts also allow entities like corporations, limited liability companies, and unincorporated associations to hold and convey property, providing further flexibility.
8. Avoiding Disputes: Properly executed living trusts help avoid disputes among beneficiaries after the trustor’s passing.
9. Legal Assistance: Consultation or representation from experienced probate attorneys in Los Angeles California at Schorr Law, can be invaluable in navigating trusts, probate, and real estate matters.