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:

  1. Decedent left an insurance policy with a death benefit over $100,000 (or less for that matter) payable to a living individual
  2. 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)
  3. 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
  4. 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:

  1. Decedent died with a bank or brokerage account held solely in their name with a value in excess of $100,000
  2. Decedent owned real property held solely in their name
  3. 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
  4. 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

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