Salinas, CA asked in Estate Planning for California

Q: My husband will not set up a trust, our assets are about 1.75 million. What happens if he should suddenly die?

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2 Lawyer Answers
Gerald Barry Dorfman
Gerald Barry Dorfman
Answered
  • Mill Valley, CA
  • Licensed in California

A: Generally, and understanding the details matter: Assuming all your property is community property, and he has no will, his estate (his half of your community property) will go through probate. Probate is a court process. You will receive the property, minus costs of administration. If there is separate property and no children, you will ultimately get all the property, minus costs of administration. If there are children, his separate property will be divided between you and them. If there is real estate involved, how title to the real estate is held can change how it passes in the above explanation.

Yelena Gurevich , Nina Whitehurst and Sally Bergman agree with this answer

Julie King
Julie King
Answered
  • Estate Planning Lawyer
  • Monterey, CA
  • Licensed in California

A: The law in California is that, when someone dies owning assets with a total value of $166,250 or higher, the deceased person’s loved ones must wait 1 - 2 years before they inherit the assets. The loved ones will be forced to go through a court process called probate after the person dies. Probate is similar to an IRS audit in that there are required accountings and paperwork that must be presented to the court, and literally every penny must be accounted for. If your husband left change on the top of his dresser, you would need to count it and add it to a spreadsheet. Some assets do not need to go through probate if they are titled in certain ways. But the bottom line is that HAVING A TRUST AVOIDS THE WHOLE PROBATE PROCESS, so long as the trust owners keep their assets properly in the trust.

With trusts, families can privately distribute the deceased person’s assets (as opposed to probate, which is entirely public, so anyone can learn how much money you had, what debts you owed, who is inheriting which assets, etc.) Also, with a trust, the family receives their inheritance much more quickly and easily.

I don’t know why your husband doesn’t want to set up a trust, but you could still protect your loved ones by setting up your own trust that would cover your half of the community property and all of your separate property. If your husband says he does not want to spend the money setting up a trust, tell him the probate lawyers of the world are thrilled about his decision. Lawyers make ten times the legal fees in probate as they do setting up trusts. So your husband is both failing to protect his family from a completely-avoidable probate process, he will be leaving his family much less money because a chunk of it will go to the probate lawyer, who will thank him for paying the higher fees. (Although that was said with a bit of jest, it is the plain and simple truth about what happens.) Ask anyone you know who has gone through probate what the experience was like and you’ll surely set up a trust to protect your loved ones from probate.

Yelena Gurevich agrees with this answer

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