If you live in California and prepare a will or a trust and then move out of state, you may need to update your estate plan. Now, this doesn’t mean that you would have to recreate your will or your trust. Most states, like California, have rules that say that a will from another state can be probated in that state. A trust written anywhere in the United States is valid in all 50 states.

When it comes to your power of attorney and your advanced health care directive, however, that is another story. Those documents, by and large, are state specific, which means that each state has its own individual rules about what is required for a power of attorney or a healthcare directive. So, if you move to another state, your will and your trust will still work the way that you want them to work, but you may need to update your power of attorney or your advanced healthcare directive.

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Well, there are several categories of assets that are not included in probate in California. The first category are assets that are owned by a revocable trust. If someone created a revocable trust during his or her lifetime and transferred assets to that trust, then those assets that are owned by the trust are not part of the probate case.

The other class of assets that are not part of a probate case are assets where there is a designated beneficiary. So, an example of these will include life insurance and most retirement accounts.

A third category of assets that are not included in a probate case are assets that are held jointly, such as a joint checking or savings account. The law says that when one person dies on a joint financial account, the other person is the sole owner by operation of law.

And so those types of assets, the jointly owned assets, most retirement accounts or beneficiary designated assets, and any assets that are held by a revocable trust are, are not part of the probate estate.

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California defines a small estate as someone who passes away with less than $184,500 in his or her name on the date of death. Now, that number does not include real estate. And so, if someone owns real estate in California, it’s unlikely that they can avoid probate if they haven’t done prior planning.

If someone does not own real estate and they have an estate that has a value of less than $184,500 – then they can avoid probate by signing what’s called a small estate affidavit.

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The last thing that the executor does in a case before the court distributes the assets to the beneficiaries is to file and inventory of the assets which lists out all of the assets that the decedent owned on the date of his or her death. And the value of those assets. That inventory and appraisal, as it’s known, is also a public record. And so you have the will, which is who gets what and then you have the inventory and appraisal which lists out what the assets are and what their value is. And that is a lot of financial information to have in the public domain.

In fact, one of the main motivations for most people to do estate planning is to avoid the public nature of probate.

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If the beneficiary is not the surviving spouse but is an adult child or other family member, then it’s likely that a probate case will be required.

If the beneficiary is the surviving child who is not yet an adult, meaning the beneficiary is a minor child under the age of18, then a probate case is definitely required.

Quick Question Corner is a video segment where we answer common questions about estate planning and elder law. If you have similar questions, leave them in the comment section and we can feature them in one of our videos in the future.