Do We Need Probate in California?

Whether a family needs probate depends on what the person who died owned and how each asset was held, not on whether there is a will, as the California Courts guide to property after someone dies explains. An estate is the property a person owned when they died. Formal probate is a court process for appointing a representative and administering estate property.

The question is asked asset by asset, so one family can reach three different answers. An asset in the person's name alone, with no trust, beneficiary designation, or survivorship wording attached, needs its own transfer procedure, which may be a court process or a signed statement to whoever holds the asset.

What we are deciding

Each asset gets two questions: does something already attached to it move it at death, and if not, which transfer procedure moves it? Probate Code section 7001 subjects the property of a person who died to administration under the code, except as otherwise provided by law. The first question looks for that exception.

Under Probate Code section 6101, a will may dispose of the person's separate property, meaning what was theirs alone, and their one-half of what a marriage or a registered domestic partnership acquired, called community property. A will reaches nothing else. A lawyer sorts which is which from the records.

Anything that moves an asset at death outside formal probate is called here a transfer arrangement: a trust, a beneficiary designation, a payable on death registration, a recorded transfer on death deed that met the statute's conditions, or survivorship wording in the title. A living trust governs the property actually put into it, which the trust document and each asset's ownership document show; a lawyer reads both.

Which assets already have a route out?

Probate Code section 5000 lets a written provision for a transfer at death move property though the instrument was not executed like a will: an insurance policy, an account agreement, a retirement plan, or a similar instrument. Whether a designation keeps an asset out of the property a court would administer turns on the institution's records: the designation must be the one in effect and must name someone who outlived the person, not the estate. An institution confirms its records, not ownership.

Under Probate Code section 5302, sums in a joint account at a party's death belong to the surviving party as against the estate, and sums in a payable on death account belong to a payee who survived. For a joint account a court can reach another result only on clear and convincing evidence of a different intent, a demanding standard. A will does not by itself redirect an asset that already carries a transfer arrangement; where two documents conflict, ask a lawyer.

Passing outside a court is not passing free of what was owed.

Why two names on a deed do not settle it

Civil Code section 683 creates a joint tenancy only where the transfer expressly declares it. A joint tenant's interest ends at death, which is why Probate Code section 13050 leaves property held that way out of what a shorter route measures. Two names without a declaration can mean shared ownership with no survivorship, so the share of the person who died needs a transfer procedure.

A joint account under Probate Code section 5130 is one payable on request to one or more of two or more parties, whether or not survivorship is mentioned. On a deed the words have to be there; on an account card their absence proves nothing. Copy the ownership wording exactly as it reads, as the California Courts ask when families inventory property and estimate its value.

What happens to what is left

Whatever survives that sorting needs a transfer procedure, and formal probate is one. Three shorter routes follow, some of which need no court; the California Probate Guide for Families compares the others.

A shorter route under Probate Code section 13100 opens once a waiting period has run and the qualifying California property does not exceed the current limit for the date of death. Nothing is filed with a court: the person or people entitled to a particular item sign a statement for whoever holds it, under penalty of perjury that no one has a better right, and answer personally to anyone who does. California's Small Estate Affidavit: When Can It Be Used? carries the figure and the wait.

A California home that was the person's primary residence has its own court petition under Probate Code section 13151, with its own waiting period and limit for the date of death; Can a California Home Use a Simpler Probate Transfer? explains it.

When a married person or a registered domestic partner dies, one-half of the community property already belongs to the survivor. Property passing to that survivor by inheritance or by will can pass without administration under Probate Code section 13500, subject to further requirements and responsibilities. That route has its own petition, and its section carries no limit of that kind; My Spouse Died: Do I Need a Spousal Property Petition? takes it up. Anything passing to someone else returns to the sorting above.

Why the date of death and the value decide the route

Two facts decide every route with a limit. The first is the date of death: under Probate Code section 890 the limits move periodically, and the one in force when the person died governs. Check the Judicial Council's list of maximum values for small estates against that date.

The second is gross value as the statute measures it: what the property is worth, not what is left after any loan is paid. For the route that needs no court, everything that counts is added together, and section 13050 leaves whole categories out, so a single account under the limit settles nothing. The residence petition measures that one home instead, at a value fixed by a state-appointed appraiser called a probate referee.

Three assets, three answers: a hypothetical

For a hypothetical example, suppose Rosa died in California owning three things: a house whose deed names her alone, with no trust and no transfer on death deed; a retirement account naming her surviving daughter; and a checking account held with her son, whose card says the balance belongs to the survivor. Assume she had no spouse or registered domestic partner.

The retirement account names someone other than the estate, so the daughter claims it from the plan, not a court, once the plan confirms its records.

The card's wording means the balance belongs to the son as against the estate, unless a court finds clear and convincing evidence of a different intent. It is outside the property a court would administer and the arithmetic for the shorter routes.

The house has no arrangement attached, so it decides whether this family needs a court. Which route fits depends on facts the example does not supply: whether the house was Rosa's primary residence, what it was worth at her death before subtracting what is owed, and what other California property counts alongside it. The routes do not all measure the same way.

Change one fact. The deed shows Rosa had transferred the house to herself as trustee of her living trust. The house is then trust property, transferred under the trust's terms with no court process, and the family reads the trust and the deed.

What to gather before the first conversation

The ownership wording points to the route, the date of death fixes the limit, and a lawyer compares that limit against the gross value of what counts, with any loan noted separately, not subtracted. Gather:

• The ownership document for each asset: the deed, the account card, the vehicle title, and the trust with any deed moving property into it.
• The beneficiary designation of record: ask each insurer, plan, or bank what its records show; the copy at home may not be current.
• The date of death and a certified death certificate: nearly every route runs through one.
• A starting value: what each item was worth at the death, marked as your estimate.

Being named executor is not the same as being the person who may sign for a particular asset; Someone Died in California: What to Do First takes that up. The Asset Ownership worksheet records the wording.

Watson Law Group, APC advises California families on estate administration. To discuss which route the assets point to and what the estate needs next, bring the deed, the account paperwork, and the date of death.

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General California legal information, not advice about a particular estate.