When Is Probate Required in The State of California?

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“There may be some questions about probate, depending on whether you have recently lost a loved one or are putting together your estate plan. Does probate always have to take place in California?”

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When Is Probate Required in The State of California?

The question is valid and requires an understanding of the probate process and the laws surrounding it. The steps involved in probate differ from state to state, but there are many similarities. Here is When Is Probate Required in The State of California, along with why and how to avoid it.


About the Probate Process

A probate court determines how to administer an estate when an individual dies, and circumstances require the court to do so.

The deceased person must have a will and, if so, whether it was valid and properly executed before any of this can be determined. A judge appoints a person to collect and distribute assets, handle debts, and manage other financial affairs related to the estate.

The executor, appointed to handle the deceased’s estate, files a claim with the probate court if the deceased had a will. If there were no will, the court would appoint that person. This is the “administrator.”

Probation can take months or years, depending on the case’s complexity.


Why Probate Process?

When property owners die, their assets usually go through and are often reviewed by a probate court. Probate is the process of analyzing estate assets and transferring them to beneficiaries. This court makes the final decision on dividing and distributing assets. Probate proceedings typically examine whether the deceased has provided a legalized will.

There are many instances when the deceased has prepared documentation that specifies how their assets should divide following their death. However, there are also instances when the deceased left no instructions for how their assets should pass.


A Will for Probate

Typically, an executor of a deceased person will initiate the probate process when the testator dies. The executor is a family member, but the will can also specify one.

When a will goes with the probate court, the executor is responsible. States might have different deadlines for submitting wills following death, and the filing of a will begins the probate process.

An authentic will left behind is authenticated by the court and accepted as the true last testament of the deceased in a probate proceeding, which the court supervises. Following the will, the court appoints the executor, allowing them to follow the deceased’s instructions.


The Probate Process Without a Will

When someone dies intestate, they do not leave a will. The probate process applies to intestate estates where the court finds the decedents will be invalid. An intestate estate consists of distributing assets according to state law. Probate may be unnecessary if a deceased person has no assets.


The Probate Process Without a Will


Most probate court proceedings begin with appointing an administrator, who also acts as executor, paying for the estate’s outstanding debts and receiving any legal claims against it.

The administrator must identify any legal heirs of the deceased such as:

  • Surviving spouses,
  • Children,
  • And parents.

In most states, probate laws divide property between surviving spouses and children of the deceased. The probate court will determine what assets must go to these legal heirs.

An heir who may step forward to claim the assets will usually have a period during which they can claim them. Escheatment is the process by which assets pass to the government.


What Is the Reason for Probate?

Probate is usually necessary in the following circumstances:


When The Estate is Valued at More Than $166,250

An estate worth more than $166,250 is subject to probate—the threshold amount changes periodically to reflect inflation. Calculating the total value of your estate and deducting any debts and funeral expenses from the total value of your estate can be used as an estimate of whether your estate has crossed this threshold if you don’t know for sure.


When A Deceased Owned Real Estate

To pass ownership of real estate assets to someone else after your death, you must go through probate if you own a house or business. Unless something else is expressly stated in writing (e.g., joint tenancy), real property always requires formal probate proceedings in California, even when you have a will and designate someone else as the beneficiary.


Decedents Who Didn’t Leave Wills

If someone passes away intestate, they tend to have died without a will. As there are no instructions from the deceased, the heirs cannot determine what property and to whom to distribute it. Hiring an attorney to determine who gets what and when it is due may be necessary.


Heirs Who Are Minors

Minor (under 18) needs an attorney to represent them in court since they cannot do so independently. During probate, the court appoints a guardian ad litem (GAL) to protect the minor heirs’ interests.


When To Pay Debts

When some debts or assets must pass, probate is also necessary. You will also need to file a probate to distribute assets if you have transferred assets during your life or have a trust.


The Contesting of a Will

As a result of contesting the validity of a will in court, probate proceedings will also occur. The executor may need an estate planning lawyer’s assistance in this situation. As well as representing the client’s interests during court hearings, the attorney can provide legal advice.


What Are the Circumstances When Probate Is Not Necessary?

Most states have simplified procedures for transferring assets from small estates. Which only requires signing a sworn statement. In estates with less than a certain value, probate is not necessary.

The following types of assets don’t need probate because they are usually automatically transferred:

  • Joint ownership or co-ownership (Joint Ownership with Surviving Rights)
  • Existing assets with a valid beneficiary (i.e., retirement accounts)
  • Assets with a payable-on-death provision (POD) or transferable-on-death provision (TOD)
  • A living trust’s assets
  • Valid beneficiaries on life insurance
  • Beneficiaries of valid pensions
  • Property ownership in other forms (such as community property)
  • Depending on the state inheritance law (like vehicles), certain other assets may also pass through an affidavit of survivorship.
  • A contract (such as a business buy-sell agreement)

Various factors may determine whether or not you need probate, including the estate asset thresholds that vary from state to state. View our resources page for more information, and contact a trusted professional if you have any further questions.


Some Reasons Why Probate Is a Bad Idea

The probate process is one of the necessary steps in handling an estate after someone passes away. But there are ways to avoid the probate process altogether in California. However, why would it be better to avoid this process? It would be better to avoid probating an estate for several reasons.


Probate is expensive

The process of probate occurs in the probate courts. This often means hiring and paying a probate attorney and an executor/administrator to assist with the various steps. Furthermore, you must pay the court fees throughout the process, which leads to thousands of fees you could have avoided if you didn’t need probate.


Probate delays the administration of estates.

A court is responsible for overseeing all actions taken by the heirs and beneficiaries, meaning there can be a substantial delay between death and when assets are received.


Probate exposes private information.

For your privacy, you should keep some information private, so you should not allow the probate process to take place. This includes your assets, their value, and who is designated to inherit them.


You lose control of the probate process.

Having an estate go through probate entrusts those decisions to the courts. A judge appointed by the courts will decide property distributions.

Keeping costs low and keeping privacy, control, and timeliness in an estate administration is attainable by avoiding probate in California.


Probate: How to Avoid It

Planning carefully can prevent probate from occurring entirely. For some, this means reducing legal fees and avoiding estate taxes, which can take away significant amounts from wealthy estates. Since some records may not be publicly available, avoiding probate can protect privacy.

Using a revocable living trust is one of the best ways to avoid probate. Trust assets belong in trust, but the trust creator can use them during their lifetime. When a trust creator dies, assets in the trust are passed on to the trust beneficiaries automatically. Probate is not required.

Unless you name a beneficiary on your life insurance policy, you will not have to go through probate to receive the death benefit. The beneficiary for your life insurance policy will receive the death benefit directly without going through probate.

In a payable-on-death account, the balance of an account passes without probate. After the account owner’s death, the beneficiary receives the balance.

A joint tenant, or a joint tenant in its entirety, also goes beyond probate. In these cases, the property has two owners. When the first owner dies, the second owner inherits the entire property.

There will almost always be some contact between a family and a probate court, but it is often an inexpensive and streamlined process.


Code Of Probate in California

An executor is responsible for fulfilling the wishes of an estate if a person has a will, which can be a family member or an individual. California law requires the executor to pay bills and taxes, distribute property to heirs, sell real estate and other assets owned by the deceased person, and fulfill other administrative duties.

Anyone interested in the estate must participate in probate proceedings and decide if they want to receive payment. Applicants must submit their claims within a certain period, or they will prevent from receiving payment.

A California Probate Code section §15000 through §17000 defines each party’s rights and responsibilities.




What Are the Main Players in A Probate Case?

Judges play a major role in probate cases, but the assistants of the judges, also known as probate attorneys, play an important role.

The probate attorney reviews all the documentation before the judge makes a ruling and advises the judge on what they expect the ruling to be. The two people who play the most important roles in a probate case are those individuals.

Administrators or executors must satisfy the judge and the judge’s assistant. All documents must be filed by the administrator promptly, along with any necessary supporting materials, and any interested parties must be notified. Assisting the administrator is their attorney, who knows the procedures and the process involved.


Is There a Typical Obstacle in Probate?

In probate proceedings, one of the most difficult things to deal with is the sale of real estate. Business interests, whether closely held, family or sole proprietorships, can be extremely challenging too.

It can be challenging for the administrator to learn something new and do something they need to become more familiar with, such as handling probate accounting and keeping financial records to get approval from the court.


How Does Probate Usually Work?

The process of probate consists of three steps. Initially, the court must appoint an administrator to manage the estate. The court then accepts if there is a will and distributes it following its instructions if the will is valid.

In the second stage, the administrator will liquidate assets, real estate, stocks and securities, and other items during the administrative period. The administrator will convert any assets into cash to pay all estate bills as long as there are sufficient assets.

The third step of the probate process is to provide a statement to the court and beneficiaries and then request permission to distribute. If the court grants the request, the distribution occurs, and the process is complete.


Bottom Line

During probate, creditors receive payment, and beneficiaries receive their rightful inheritance. Probate ensures that a deceased person’s wishes come true and that his creditors and beneficiaries receive their inheritances.

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Hedy Ghavidel

HEDY GHAVIDEL Managing Attorney  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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