Do I need to go through Probate?

Probate is usually necessary to transfer assets from a decedent’s estate to beneficiaries, however, there are exceptions. The following is a list of situations where Probate is not necessary:

1-No Probate Assets. The decedent died with no property. (However if the decedent had debts due or owed, a probate might be necessary)

2-Set Aside the Estate. The decedent’s probate estate is worth less than $20,000 with real and personal assets combined, and the person requesting to receive such assets is the surviving spouse, a minor child, or executor named in the Will. In this situation, you would file a petition asking the court to “set aside” the estate.

3-Small Estate Affidavit. The decedent’s probate estate (real and personal property) is worth less than $150,000, and the property is personal property. This is commonly referred to as a “Small Estate Procedure”. Please note that the Small Estate Procedure cannot be used for real property.

4-Real Property of Small Value. To transfer decedent’s real property in California worth less than $50,000.

5-Order to Clear Title. To transfer decedent’s real property, or real and personal property, worth $150,000 or less. In such a situation, the beneficiaries will need to request that the Court make an Order to Clear Title to real or real and personal property. This is also commonly referred to as a Petition to Determine Succession to Real Property.

6-Spousal Property Petition. A Spousal Property Petition can be used to transfer assets from a decedent to a surviving spouse, or domestic partner, if the surviving spouse is the sole named beneficiary in the decedent’s Will. If the decedent had no Will a Spousal Property Petition can be used to transfer all community property interest in the estate that would normally pass through intestate succession. This is a much quicker mechanism to pass property to the surviving spouse, however some drawbacks include the surviving spouse assuming liability for debts/lawsuits associated with received estate assets.

7-Collecting Compensation Owed to Deceased Spouse or Domestic Partner. After the death of a spouse, the surviving husband/wife or domestic partner, may, without obtaining letters of administration or awaiting probate, collect the unpaid salary of the deceased spouse, including compensation for unused vacation for an amount not exceeding $15,000 net without filing a court document.

8-Assets not part of the “probate estate”. Assets of the decedent holding specific title are not subject to Probate procedures because their inherent form of title has beneficiaries already defined. These forms of title include assets held in:

A-Joint Tenancy

B-Community Property with Right of Survivorship

C-Life Insurance Beneficiary

D-Retirement Benefits

E-Pay on Death bank accounts

F-Assets titled in a Trust

G-Real Estate located outside of California.

For more information on how to transfer these assets, click on the respective type of ownership above.