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Which assets have to go through probate?

On Behalf of | Feb 20, 2024 | Probate |

The thought of probate can leave you and your family facing a lot of questions after the loss of a loved one. These may include (1) how does probate work; what needs to be done to start the probate process; (3) how long will it take; and (4) what assets are part of the probate and which assets are not?

In California, there are simpler procedures to transfer assets that do not require probate.  But first you want to know “what assets are not included in the probate process”?  It helps to consider the following to determine whether a probate is needed or whether a simpler process would work to get the asset to the right person (beneficiary/heir).

Are there beneficiaries listed?

Bank accounts, insurance policies, retirement accounts and some other financial accounts often list a beneficiary, or someone who will be able to collect those funds once the principal/owner of the account passes away.  If you are listed on one of these assets as beneficiary, the  institution will require a death certificate and your personal information.  If there are no beneficiaries listed, the assets may have to be probated.

Is there a trust?

Assets that are held by the Trustee of a Trust and have a named beneficiary in the Trust, the Successor Trustee will distribute the asset to that person without having to go through probate. However, there are specific rules for trust administration that the Successor Trustee will have to follows.

Who owns the property?

Let’s say a couple owns a house together and one of the spouses passes away.  The house will most likely not be a probate asset if (1) it is titled in the name of the Trustees (or Successor Trustee); (2) titled in the name of  husband and wife as community property, with right of survivorship;  or (3) tilted in the name of husband and wife, as joint tenants, with right of survivorship.  This may also apply to financial accounts or other assets that the couple owned together. To that end, assets that are held in  joint tenancy or have beneficiary designations are most likely non-probate assets.

So, what about everything else?

It depends.  If an asset is titled in the decedent’s name, without a beneficiary designation, it will most likely be a probate asset if the total amount of probate assets is $184,500.00 or above.

It is clear that probate can be a complex process, and it very much depends on your loved one’s estate plan and preparation, as well as the details of the  estate overall. No case is the same. That is why it is often beneficial to seek guidance from an experienced probate attorney to understand the steps of this process.