May 16, 2022
How To Avoid Probate in California
To avoid probate in California, a person must use legal tools to ensure their property is not solely owned in their individual name. Here are ways you can avoid probate.
Have any questions? Ask us.
When a person dies, they often leave behind a will to legally indicate how they would like their assets to be distributed after their death. Estate settlement usually involves a high degree of legal and administrative responsibility. Considering the difficulty and complexity of distributing assets to beneficiaries and settling the estate, it's necessary to assign a trusted individual to carry out this duty.
A will often names an estate executor to oversee the distribution of assets according to the will and in compliance with local law. In some cases, an estate executor may choose to sell estate property in order to generate liquid funds to pay off debt or more easily distribute assets.
But whether or not an estate executor can sell property belonging to the estate depends on various factors. For the most part, it depends on whether the will gives explicit permission to the executor to sell the property, whether there are others entitled to the properties owned, and how the testator wished to distribute their assets.
We regularly share relevant information about wills and estates.
A joint tenancy refers to an arrangement in which a single property is jointly owned. When one of the two owners dies, the surviving one receives automatic ownership of the property. In this case, an estate executor does not have the right to sell the property unless they themselves are the surviving joint tenant.
A testator may give the named estate executor permission to sell and otherwise deal with their property, as long as it’s in the estate’s best interest. When the British Columbia probate court issues a grant of probate, the executor has the authority to sell the property in order to proceed with their duties of distributing assets. However, the executor has the duty to ensure that the property is sold at market value and doesn’t deteriorate during the settlement process. And although they don’t need the approval of beneficiaries to execute a sale, the executor should notify them to ensure everyone’s aware of the process.
A will may explicitly name a beneficiary for a property. Several steps must be taken before the property goes into the hands of the beneficiary. As in the above case, the estate executor must first apply for a grant of probate. When it is approved, the executor can then legally transfer ownership to the named beneficiary. In this case, the executor cannot sell the property without the beneficiary's permission.