Is Probate Necessary?

Individuals are often thrust into the world of Probate and Estate Administration without a whole lot of instruction. Perhaps you find out after the death of a loved one that you were named as the executor, or trustee, or both. If you find yourself in the position of having to administer an estate, one of the first places to begin is a determination of what assets, if any, require Probate.

Generally, most people wish to avoid the time and expense of Probate, thus saving more of their estate to be passed on to their loved one. Fortunately, there are many methods of avoiding a formal probate. Once you have a good idea of the assets of the estate, you may take the following initial steps in order to determine what assets may require probate:

Probate and Non-Probate Assets

The first step is to make your best determination as to what assets are part of the ‘Probate Estate’. Not all assets are required to go through Probate, and many assets bypass probate automatically. Common Assets that don’t require Probate are:

• Life Insurance Proceeds (with a properly designated beneficiary)
• Retirement Accounts (with a properly designated beneficiary)
• Assets that are held in a Living Trust
• Property held as Joint Tenancy with right of survivorship
• Property held as Community Property with right of survivorship
• Accounts registered as Pay on Death (POD) or Transfer on Death (TOD)

The above items are generally not considered a part of the Probate Estate. Most other assets are included in the Probate Estate. What that means, is the total value of the assets included in the Probate Estate is considered when determining if probate will be necessary.

If the Probate Estate total value is greater $166,250 (for 2021, See Probate Code §13100)

A Probate Estate valued over $166,250 requires a formal probate. Before assets can be collected and distributed, a petition for probate must be made to the court appointing an administrator, and court orders must be received before distributions are made. Considering the time and cost of Probate, it is generally best to try and avoid this.

If the Probate Estate total value is LESS than $166,250

When a formal Probate is not required, the estate may be able to be distributed to the beneficiaries by using an affidavit. The affidavit process can be used once 40 days have passed since the death of the decedent, signed by the beneficiaries, and delivered to the person or entity that holds the asset.

The basic determination above applies to all decedent’s estates in California. Though there are various alternatives to a formal probate in certain situations, making the determinations above can give you a good idea if you will need a formal probate. If you find yourself in a position where you need to make this determination, you should contact a qualified probate attorney to assist you. Certain pitfalls and alternative options may be available that you are not aware of. The attorneys at Naimish & Lewis are always ready to assist with your probate needs.