DO I NEED TO GO TO PROBATE?

When someone passes away, their property needs to be distributed to their heirs and/or beneficiaries.  Probate is the most widely known manner of doing this.  But how do you know if probate is necessary?  Not everyone’s property needs to go through probate; this article will address the circumstances under which probate will not be necessary.

The Decedent Had a Trust

If all of the decedent’s property is held in trust, then probate is not necessary.  The trustee, or successor trustee, of that person’s trust will distribute the property pursuant to the trust’s terms.

The Decedent’s Property is All Held in Joint Tenancy or Community Property with Right of Survivorship, or Is Subject to A Beneficiary Designation

If the Decedent’s property is held as Joint Tenancy (note that this is distinct from Tenants in Common) or as Community Property with Right of Survivorship (but not merely Community Property), those assets will pass by operation of law to the other joint tenant(s) or spouse.

Similarly, assets owned by the Decedent that, by contract, are payable to a designated individual upon the Decedent’s death, will not need to go through probate.  Life insurance, retirement benefits and pay-on-death accounts are common examples of this. Note that if the policy or account failed to designate a beneficiary, then the funds are payable to the decedent’s estate, and probate may be necessary.

All of the Decedent’s Property is Community Property or Was Left All to the Spouse or Registered Domestic Partner

If the surviving spouse is legally entitled to all of the Decedent’s property because it is all community property, or if the Decedent left all property to his or her spouse, then only a Spousal Property Petition will need to be filed.  This is a much-simplified probate procedure, but which does require an order from the Court.

The Decedent’s Estate is Worth Less than $150,000

If the Decedent’s total assets – not including vehicles, property outside of California, and property subject to the provisions above – are worth less than $150,000, then you may use the simplified Affidavit of Small Estate to transfer the Decedent’s assets. Note that you cannot subtract debts of the Decedent when calculating the value of the estate.

The Decedent Did Not Transfer Their Property To Their Trust

If the Decedent had a trust, but failed to transfer ownership of their assets to their trust, then a limited probate procedure, called a Heggstad Petition may be necessary.  This is effectively a request to the local Probate Court for an order deeming the asset to legally be an asset of the trust.