Is probate necessary?
If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims. When there is property to transfer the probate process also provides for the distribution of the estate’s property to the decedent’s heirs.
Under California law, a probate of an estate is generally necessary when an individual passes away leaving assets in excess of $100,000 that do not pass via beneficiary designation, joint tenancy, or if such assets were not held in trust.
For example, under the following circumstances, a probate would not be necessary:
- Decedent left an insurance policy with a death benefit over $100,000 (or less for that matter) payable to a living individual
- Decedent had bank and brokerage accounts held jointly with another living individual (in such case, those accounts would pass automatically to the joint account holder)
- Decedent owned an IRA (or other retirement related account) with a value in excess of $100,000 (or less) which named a living individual as the beneficiary
- Decedent owned real property held either in joint tenancy or as community property in which the other owner(s) were living
A probate of an estate, however, would most likely be necessary under the following events:
- Decedent died with a bank or brokerage account held solely in their name with a value in excess of $100,000
- Decedent owned real property held solely in their name
- Decedent owned a life insurance policy with a death benefit over $100,000 in which no beneficiary was named or where the named beneficiary predeceased the decedent
- Decedent owned an IRA (or other retirement related account) with a value in excess of $100,000 in which no beneficiary was named or where the named beneficiary predeceased the decedent
Other Frequently Asked Questions
- Am I responsible for paying the rest of my deceased spouse’s bill?
- Are holographic wills valid in California?
- Do I have to leave assets to my children equally?
- Do I have to use a lawyer for the probate process?
- Does all property go through probate when a person dies?
- Does an executor or administrator receive compensation?
- Does the Court supervise the personal representative?
- How are taxes handled in probate?
- How can an estate plan avoid a conservatorship?
- How can I find out if there was a Will?
- How can I protect my children?
- How do creditors get paid?
- How long does probate take?
- How much does probate cost?
- How should I prepare to meet with my estate planning attorney?
- How will the debts of the decedent affect the beneficiaries?
- If I am named as executor in a Will, do I have to serve?
- If I establish a revocable living trust, will I lose control over my assets?
- If I serve as executor, will I get paid?
- If I transfer title to real property to my living trust, does the bank have the right to accelerate my mortgage?
- Is a will that was prepared in another state valid in California?
- Is it necessary to amend my will if I wish to bequeath certain assets to specific family members or friends?
- Is it possible to appoint a corporate trustee?
- Is my trust, which has title to my property, immune from lawsuits?
- Is probate necessary?
- Must I transfer all of my assets to my living trust?
- My child is married, and I don’t trust my child’s spouse. In the event they divorce, how can the inheritance be kept separate?
- Should estate planning documents be kept in a safe deposit box at a bank?
- Should I choose simplified probate procedures?
- Should I include a Medi-Cal planning section in my estate plan?
- What are disclaimer trusts and A-B trusts?
- What are the responsibilities of an executor or administrator?
- What does the Personal Representative do?
- What happens if the personal representative fails to perform his or her duty?
- What if someone dies and I have the Will in my possession?
- What if someone objects to the Will?
- What if the decedent owned land in more than one state?
- What if there is no Will or I cannot find a Will?
- What is a durable power of attorney?
- What is a pour-over will?
- What is a self-proving will?
- What is Probate?
- What is the best way to title pay-on-death bank accounts, retirement accounts and life insurance policies?
- What is the purpose of a life insurance trust?
- What would be the outcome if I became mentally disabled, and had no estate plan in place, or only had a will?
- When can a Will be contested?
- Who can and cannot be the personal representative?
- Who can contest a Will?