Which Property In California Goes Through Probate?

May 7, 2007 by Mitchell A. Port

Probate in California requires these assets to be probated:

The deceased person's share of an asset when the asset is registered as tenants in common with other people.

One-half of each asset registered as community property in the decedent's name with his or her spouse.

Assets in the deceased person's name alone.

California law provides that a probate is not necessary if the total value at the time of death of the assets does not exceed the sum of $100,000. If the deceased person has 3 accounts at 3 different banks each having $35,000 on deposit, then the sum of the 3 accounts exceeds the $100,000 limit and each account must be probated even though each account is less than $100,000. There is a simplified procedure for the transfer of assets with a value under $100,000. The $100,000 figure does not include vehicles and certain other assets.

The following assets are NOT subject to the California probate process:

Assets in a bank or savings and loan account in the deceased person's name as "trustee" for someone else.

Assets which can be registered in a person's name and which are "payable on death" (P.O.D.) or "transfer on death" (T.O.D.) to someone.

Assets held in joint tenancy with another person or persons.

Assets held in a living trust.

Assets such as life insurance and IRA benefits, where a beneficiary is named and is alive at the time he or she is to receive the property from the deceased person.

Assets registered by husband and wife as "community property with right of survivorship."

Assets passing to the surviving spouse. If the deceased person owned assets in his or her name alone but these assets are left by will or pass by intestate succession to the surviving spouse, no probate is necessary.

In some cases, part of an estate in California can avoid probate while another part of the same California estate may have to go through probate.

If you would like to know whether a probate is necessary, Mitchell A. Port welcomes calls for a consultation at (310) 559-5259.