Probate is a judicial process used to ensure that a will is the true last testament of a deceased person and that it is also accepted as a valid public document. The court process is meant to manage a decedent’s estate and then distribute their assets. Though the process is similar in all fifty states, each state has its own statutes or laws set forth by its legislature to govern it. California’s probate laws are set forth in the California Probate Code.
Contrary to popular belief, an entire estate will not be automatically subjected to the probate process after the estate owner’s death. The probate court’s legal authority only extends to property that is owned solely by the estate owner. For example, jointly owned assets are excluded from probate court because they are not owned only by the deceased. Assets that are non-probate property can pass to the designated person without going through the probate court process. This enables it to pass immediately, as the probate court process can take months to complete.
Any personal assets that the decedent owned in their name prior to passing are included in probate assets. There are generally two types of property involved in probate: tangible and intangible. Personal property or real estate is considered a tangible asset and could also potentially include:
Intangible assets are assets that cannot be immediately liquidated for cash following the owner’s death. Intangible assets that are subject to probate include:
Half of the decedent’s community property (property acquired during a marriage) is typically included in California’s probate court process, as is the decedent’s portion of a property when the asset has a “tenant in common” title. The value of each asset must be determined by the estate executor and then submitted to the probate court.
Property with multiple owners is not considered a probate asset, and ownership typically transfers to the surviving owners. One common example of this scenario occurs when a spouse passes away; the surviving spouse will automatically inherit the decedent’s portion of the property and become the sole owner. Many retirement accounts, including IRAs and 401ks, also avoid probate: they have a designated beneficiary, and the account will automatically transfer to this beneficiary after the account’s owner passes away. Pay on Death, or POD, accounts are registered to transfer upon death and avoid probate court. Life insurance policies are also excluded from probate management.
A living trust can also be used to avoid probate for any assets that could be subject to probate court. The trust becomes the owner of the assets; therefore, probate has no control over the property in the trust, and it can quickly be distributed to the beneficiaries.
A: The death of a person does not immediately begin the probate process. Initiating the probate process requires an executor to file a petition for probate with the superior court in the decedent’s county of residence. An executor can be named in the will. However, if one is not named, a family member can ask the court to be appointed as an executor to begin the probate process.
A: Real estate is an asset that commonly avoids probate. If both your spouse’s name and your name are on the mortgage and/or deed, your home will not go through probate. Real estate that is owned jointly often has the right to survivorship: if one owner passes away, their portion of ownership transfers to the surviving owner or owners. In the case of a marital home, the surviving spouse becomes the sole owner of the home and entirely avoids the probate process.
A: Bank accounts are considered intangible assets, so whether they are subject to probate depends on how they were held. If the account is held solely in the deceased’s name without a designated beneficiary or co-owner, the account must go through probate court. Probate can be avoided if the account is a joint account or if a beneficiary is named. The funds will automatically transfer to the joint owner, and the beneficiary can fill out a claim form to inherit without court intervention.
A: It is possible to handle probate court without a lawyer. However, probate laws can be incredibly complex and prone to changes that will make the process difficult. Probate rules can also differ between California counties. A skilled and knowledgeable probate lawyer can simplify the process and ensure it is handled correctly.
A: If the deceased owes back taxes or has outstanding debts, the court has the authority to take money from the estate to pay off these balances before the assets are distributed to the beneficiaries. This will result in less inheritance being passed to each of the beneficiaries.
Determining which assets must go through probate can be a complicated process, especially when there are other aspects to consider. For example, personal property must go through probate court, but the property will not need to go through probate court if it was securely placed in a living trust before the individual passed on. Retaining an experienced probate lawyer can give you answers to these situations and help walk you through the best methods for handling probate court.The Sweeney Probate Law team has spent over 50 years representing Californians in probate law. We can help you through these situations and make sure that your estate is handled the way you want it to be.