Encinitas,
  San Diego County

Practice Areas - Avoiding Probate

How can you avoid Probate?
 

There are alternatives to Probate.  In certain circumstances you should be able to retain counsel at an hourly rate to prepare and file the following documents rather than pass through and pay for a formal Probate.  Overall this should be less costly and faster.


1. Spousal or Domestic Partner Property Petition

The Spousal or Domestic Property Petition is one of the most useful tools for avoiding Probate.  In circumstances where all assets are left to the surviving spouse or registered domestic partner free of trust, a Spousal or Domestic Partner Property Petition can be filed 40 days after death. 

This will allow the assets to pass to the surviving spouse or domestic partner.  Although there will be a noticed hearing, formal Probate is avoided.  The assets passing must be inventoried, the procedure will not be effective for out of state property and the creditor claim period will be longer.  Significant statutory Probate fees would likely be avoided. 


2. Petition to Determine Succession to Real Property

If the gross value of the decedent’s Estate is less than $150,000, you can avoid Probate by filing a Petition to Determine Succession to Real Property.  This would be applicable if the Real Property value exceeded $50,000 but the Real and Personal Property in the Estate were valued at less than $150,000.  There would still be a noticed hearing on the matter, but a formal Probate could be avoided.


3. Real Property of Small Value Affidavit

Although not common in San Diego, if dealing exclusively with Real Property valued at $50,000 or less, a Real Property of Small Value Affidavit may be utilized.  This could be useful when dealing with small parcels of undeveloped land.  After filing with the court the document would be recorded with the County Recorder’s Office.


4. Collection By Affidavit

Avoid Probate for an estate of exclusively Personal Property that does not exceed $150,000 by utilizing Collection by Affidavit.  There is a 40 day waiting period after death, then an affidavit signed under penalty of perjury would be presented to the holder of the Property.  Although no court involvement is required, certain financial institutions may be resistant to honoring this affidavit and court involvement may become necessary.


Other Alternatives to Probate

Outside of the aforementioned circumstances, the proactive approach of creating an Estate Plan that includes a Trust is an option that allows you to control the disposition of your Estate while avoiding Probate.  Distributing an Estate with a trust avoids the typical higher cost, time and publicity associated with Probate. 


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