Key Takeaways
In California, assets owned solely in the deceased person’s name generally must go through probate if they do not have a mechanism for transferring outside of probate — unless the estate qualifies for a simplified procedure.
- Probate serves an important purpose. Although probate isn’t always necessary, when it is required, estate assets generally cannot be transferred to the rightful beneficiaries without it.
- Probate assets may be used to pay debts. Outstanding debts are generally paid from the probate estate before assets are distributed to beneficiaries. Significant debts could therefore reduce or eliminate inheritances.
- Avoiding probate can be beneficial. While avoiding probate isn’t always possible, when it is, it may allow assets to be transferred to new owners more quickly, cost-effectively, and privately after death.
What Assets Are Subject to Probate?
In California, assets owned solely in a deceased person’s name generally must go through probate if no mechanism exists to transfer them outside probate and the estate does not qualify for a simplified transfer procedure.
The personal representative, also known as the executor or administrator, is responsible for managing the deceased person’s probate assets.
After Being Appointed by the Court, the Personal Representative Generally Must:
- Identify and secure the probate assets to protect them from loss, damage, or theft.
- Create an inventory and have the assets professionally appraised to determine their value.
- Use estate assets to pay valid debts and expenses.
- Distribute the remaining assets to the beneficiaries or heirs after debts and other required expenses have been addressed.
Assets That May Need To Go Through Probate Include:
- Personal property: Cash, collectibles, jewelry, artwork, family heirlooms, vehicles, and other personal belongings owned solely by the deceased.
- Financial accounts: Bank and investment accounts held solely in the deceased’s name that do not have a valid beneficiary designation or another mechanism for transferring the account outside probate.
- Real estate: Property owned solely by the deceased that is not held in a trust, subject to a valid transfer-on-death deed, or jointly owned in a way that provides for transfer at death.
- Securities: Stocks, bonds, and other securities owned solely by the deceased without a beneficiary designation or other non-probate transfer mechanism.
- Business interests: Certain interests in businesses, including a sole proprietorship or the deceased person’s interest in a partnership.
What Assets Are Not Subject to Probate?
In California, assets jointly owned with a right of survivorship, held in a trust, or designated to pass to a beneficiary generally bypass probate. However, even assets that typically pass outside probate may require court involvement if a dispute or other complication arises.
Avoiding probate can allow assets to reach beneficiaries more quickly, cost-effectively, and privately. California probate can be expensive and often takes a year or longer to complete. Because wills and probate proceedings are generally public record, probate also provides less privacy than many alternatives. For these reasons, people often structure their estates to minimize or avoid probate.
Assets That Generally Bypass Probate Include:
- Trust assets: Assets legally transferred to a trust generally pass according to the trust’s terms and can be distributed by the successor trustee without probate.
- Jointly owned assets with a right of survivorship: When two or more people own an asset with a right of survivorship, the surviving owner or owners generally automatically receive the deceased owner’s interest. This includes property held in joint tenancy or property held as community property with rights of survivorship.
- Assets with beneficiary designations: Accounts and other assets with valid payable-on-death (POD) or transfer-on-death (TOD) designations generally pass directly to the named beneficiary without probate.
Do All Probate Assets Have to Go Through Probate in California?
An asset that would otherwise be subject to probate may qualify for a simplified procedure that allows it to be transferred without a full probate. These procedures are generally available for estates that meet specific value and eligibility requirements.
California offers several simplified procedures for relatively small estates and certain types of property. However, eligibility depends on the circumstances of the estate, and disputes involving a will, estate property, or fiduciary conduct may still require court involvement.
California’s Simplified Transfer Procedures Generally Include:
- Small Estate Affidavit: Estates consisting solely of personal property with a total value of $208,850 or less may qualify for transfer using this procedure.
- Affidavit for Real Property of Small Value: Real property valued at $69,625 or less may qualify for transfer using this procedure.
- Petition to Determine Succession to Primary Residence: A primary residence valued at $750,000 or less may qualify for transfer using this procedure.
- Spousal or Domestic Partner Property Petition: A surviving spouse or registered domestic partner may generally use this procedure to confirm ownership of community property and, in some circumstances, separate property, without regard to the estate’s total value. A surviving spouse or registered domestic partner may generally use this procedure to confirm ownership of community property and, in some circumstances, separate property, without regard to the estate’s total value.
If you are unsure whether an estate qualifies for a simplified procedure, a California probate attorney can help identify the most appropriate and cost-effective way to transfer the deceased person’s assets.
How to Determine Whether an Asset Requires Probate
Whether an asset requires probate generally depends on how it is owned, its value, and whether a non-probate transfer mechanism is in place.
- How is the asset owned? Determine whether the deceased owned it individually, jointly, or through a trust.
- What is the asset worth? An asset that would otherwise require probate may qualify for a simplified procedure if it falls below an applicable value threshold.
- Is there a non-probate transfer mechanism? Check whether the asset has a beneficiary designation, transfer-on-death deed, or other arrangement that allows it to pass outside probate.
Take, for example, a $500,000 home owned solely by the deceased. It may qualify for a Petition to Determine Succession to Primary Residence procedure because it falls below the $750,000 threshold. By contrast, a $1 million home may pass outside probate if the deceased executed a valid transfer-on-death deed naming a beneficiary. In the latter case, the deed, not the property’s value, determines how the property transfers at death.
Probate Assets FAQs
Still confused about what’s involved in inheriting a house with siblings? Consult the frequently asked questions below for additional guidance.
If you have specific inquiries, it may be more beneficial for you to reach out to our probate firm directly. We are standing by to assist.
How much money triggers probate in California?
In California, probate generally becomes necessary when an estate’s qualifying assets exceed $208,850. This is the threshold for using a Small Estate Affidavit, so estates above this amount generally cannot use that procedure and may require a formal probate or other available transfer process.
Real estate may also affect eligibility for a simplified procedure. For example, a $1 million primary residence exceeds the $750,000 limit for using a Petition to Determine Succession to Primary Residence and therefore would not qualify based on value alone.
In some cases, asset value is irrelevant. Surviving spouses and registered domestic partners may generally use a Spousal Property Petition regardless of the estate’s size.
Assets held in a trust, jointly owned with a right of survivorship, or subject to a valid beneficiary designation or transfer-on-death deed generally bypass probate regardless of their value.
Do accounts with beneficiaries go through probate?
Accounts with valid beneficiary designations, called payable-on-death bank accounts, generally bypass probate and transfer directly to the named beneficiary after the owner’s death. The beneficiary can claim the account by providing the financial institution with the required identification and documentation.
That said, a beneficiary designation may be challenged in certain circumstances, potentially requiring probate to determine who is entitled to the account.
For example, suppose a deceased person’s will leaves an account to their child, but the account’s beneficiary designation names their spouse. In most cases, the beneficiary designation controls the will. However, the child could challenge the designation, which may subject the account to court proceedings that would otherwise be unnecessary.
Does a house automatically go into probate?
No, a house does not automatically go through probate. Whether a house requires probate generally depends on how title is held and whether another mechanism allows the property to transfer outside probate. If the deceased solely owned the property, no non-probate transfer mechanism is in place, and the property does not qualify for a simplified procedure, the house will generally require a full probate.
A house held in a trust, subject to a transfer-on-death deed, or jointly owned with a right of survivorship generally bypasses probate when transferred to the new owner. If none of these mechanisms apply, a simplified procedure may still be available depending on the circumstances. Although some form of probate procedure may be unavoidable, a full probate proceeding often is not.
Do personal belongings go through probate?
Yes, personal belongings in California usually go through probate if their total value before debts are paid exceeds the current small-estate threshold of $208,850. Even if the value is below this threshold, beneficiaries typically must complete a simplified affidavit or petition process rather than receiving the items automatically.
Probate can be bypassed entirely if personal belongings are transferred via a living trust or have valid beneficiary designations.
Who determines if probate is necessary?
The named personal representative typically decides whether to file a Petition for Probate based on the estate's circumstances, but the probate court ultimately determines whether a formal probate is legally required.
If the personal representative fails to initiate probate, any interested party, such as an heir or beneficiary, may file the petition to begin the process, subject to court approval.
What happens to probate assets when someone dies without a will?
When someone dies without a will in California, a court-appointed administrator distributes probate assets to the legal heirs according to state intestate succession laws. By contrast, when a will exists, a court-appointed executor distributes the assets to the named beneficiaries according to the terms of the will.
Notably, the presence of a will does not determine whether probate is required. Instead, factors such as the estate's total value, the types of assets involved, and how titles are held generally dictate whether a full probate is necessary or if a simplified transfer process can be used instead.
