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When Is Probate Not Required in California?

03/21/2024 | Blog, Probate
Sophisticated couple meeting with estate planning attorney to discuss California probate laws

When you pass away, it’s reassuring to know that your affairs will be in order. One way to manage your assets – and reduce the stress on your loved ones – is by avoiding probate.

Can you truly avoid probate, though, or is it mandatory? It all depends on your circumstances. Below, our attorneys explain when probate is not necessary in California.

What Is Probate?

Probate is the legal process for wrapping up your affairs, and distributing your assets, when you die.

  • Probate assets can be anything you own, from bank accounts to real estate.
  • If there’s a will, your executor is responsible for completing the probate process.
  • If there’s no will, the court can appoint a personal representative to manage your affairs.
  • Probate can take months, if not longer, to complete.

Probate proceedings begin the moment a petition is filed with the court. Our attorneys can explain how this process works, should your estate require probate.

Is Probate Always Required?

No. Although your affairs must be finalized when you die, a formal probate process is not always necessary.

There’s a common misconception that drafting a will means you won’t go through probate. This is not necessarily true. A will means that your final wishes will be respected, but this doesn’t mean there’s no need for court procedures.

Whether you can avoid probate depends on the specific assets you own. Although, anyone aged 18 or over of “sound mind” can – and should – consider drafting a will.

1. Small Estates

California probate laws make exceptions for “small” estates. If your eligible estate is worth less than $184,500, you can use a simplified procedure rather than formal probate.

To value your estate, include assets such as real estate and personal items. Assets held in trust and certain other property can be excluded from the total. Your attorney can explain how to properly value your estate.

2. Living Trusts

A living trust is simply a trust you create during life. You can place any asset into the trust and name a beneficiary.

Assets held in living trusts are exempt from probate. Meaning, probate is not required if your assets are held in trust. Assets held outside of the trust may still require probate. However, the more property you place into a trust, the quicker you can complete probate.

3. Transfer-on-Death Beneficiaries

A transfer-on-death (TOD) deed lets you name someone who becomes the owner of your property when you die. This arrangement takes effect on the date of death. Since ownership transfers right away, probate is not necessary for assets managed this way.

You have full control over the property until you die. You can, for example, sell it or name a different beneficiary at any time.

4. Payable-on-Death Arrangements

Probate is not necessary in California for assets with a “payable-on-death” (POD) designation. Such assets include bank accounts, retirement accounts, and savings account.

These assets avoid probate because the moment you die, ownership transfers to a named beneficiary. As with transfer-on-death arrangements, though, the beneficiary has no right to any money until you pass away. You retain full control over the assets.

5. Joint Ownership Clauses

There’s no need for probate if there’s a joint ownership clause over a property. Joint ownership means that there’s more than one owner named on the title. When one party dies, the other takes ownership.

Joint ownership rules can be complex. For example, you might require a joint tenancy agreement. Or, you might use a community property arrangement for automatic transfer between spouses.

Our estate planning lawyers can explain your options and the implications.

Let Our Estate Planning Attorneys Help You Protect Your Assets

Probate laws in California are complicated. However, with the right legal support, you can speed up the process and give your family peace of mind.

At the Law Offices of Alice A. Salvo, experienced probate attorneys are waiting to help. We will help you plan your estate to protect your assets and avoid probate where possible.

Contact us now to schedule a meeting or learn more about probate.