When is Probate Necessary in California?
Question: When is probate necessary in California?
Answer: In short, it depends on a number of factors. Not every death requires a formal probate proceeding.
So let’s break it down into a list of basic elements. If all of the following elements are true, probate is necessary to ensure that a decedent’s remaining assets are not taken over by the state. If one of these elements is not satisfied, probate may not be needed.
*DISCLAIMER: To determine whether probate is needed, it’s best to speak with an attorney. This post is not intended as legal advice and should not be used as a replacement to actual legal advice.
Elements
(Is each of these statements true?)
#1: Someone died.
#2: At the time of death, property was owned by the decedent. This can be an interest in real property, personal items, cash, intellectual property, a business, securities, accounts, and other assets.
#3: Of property owned at death, there was property which was not subject to a right of survivorship. Joint tenancy property held with at least one surviving joint tenant will transfer to the surviving joint tenant(s) without probate. If there is no surviving joint tenant, however, then probate may still be necessary.
#4: Of property owned at death, there was property that was not held within a living trust. Property held in the decedent’s living trust will avoid probate. Trust property is administered by the trustee, in accordance with the trust and/or pursuant to California law, without probate.
#5: Of property owned at death, there was property that was not subject to a valid “transfer on death” provision. Property held in an account that contains a legal transfer on death provision will avoid probate and be administered by the institution (e.g., bank, insurance company, investment firm, etc.), unless none of the named T.O.D. beneficiaries survived the decedent, in which event probate may still be necessary.
If all of these elements are satisfied:
Any remaining property held by the estate (i.e., not otherwise administered by a right of survivorship, living trust, or legal “transfer on death” provision) will essentially be stuck in the name of the decedent’s estate unless probated. Thus, probate may be required in order to transfer the property to the rightful heir(s).
The question then becomes, what kind of probate, formal or informal (e.g., via affidavits)?
Formal or Informal Probate
As of April 1, 2022 and lasting until March 31, 2025, a formal probate will be necessary (in California) if:
- The assets to be probated are valued at more than $184,500, OR
- If the estate includes real estate that is worth more than $61,500.
(These limitation amounts are subject to change every three years. The next change will take place on March 31, 2025)
If probate assets are valued below the limits set forth above, then an informal probate ‘via affidavit’ may take place. We will explain more about the probate via affidavit in another blog post.
