What Is "Probate"?

The word "probate" generally refers to what happens to a person’s property when he or she dies. The purpose of probate is to see that the debts and taxes of the person who has died (the "decedent") are paid and that the remaining property gets to the rightful owners.

Assets held in the decedent’s name alone are called "probate property" and usually require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law. The person who oversees the probate proceeding is called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It takes a minimum of 6 to 9 months to complete a formal probate court proceeding.

Small Estates Avoid Formal Probate

Not all estates require a full probate court proceeding, however. There are several ways probate property may be transferred in California, depending on the gross value of the estate and type of property. If the probate property does not exceed $100,000, one of California’s summary administration procedures may be used. These procedures are a boon for estates that qualify. They save time and money and the estates are settled within a matter of weeks. Moreover, several kinds of assets are not counted in determining if the estate qualifies. For instance, you do not count joint tenancy property (real or personal), property that passes outright to a surviving spouse, life insurance proceeds payable to named beneficiaries, bank trust accounts or pay-on-death accounts, mobile homes, automobiles, or property held in a living trust. Solely-owned personal property such as bank accounts, automobiles, securities, etc., can be transferred to survivors with a simple affidavit and no court involvement is necessary. For real property, a simple form petition may be filed with the probate court for an order transferring title to the survivors. There is a waiting period of 40 days from the date of death before these "summary" procedures may be used.

Property That Passes Outright to the Surviving Spouse

Property that passes to a surviving spouse is also excluded from formal probate administration. There is no waiting period to use this procedure and no limit on the value of the assets that are transferred. In this case a petition can be filed with the court to transfer real estate, stocks, and bank accounts to the surviving spouse in about 5 to 6 weeks.

"Non-Probate Property"

Not all of a deceased person’s property is necessarily probate property. Some assets are treated as non-probate property because they can pass to survivors outside a probate proceeding and aside from the terms of a will. This typically includes jointly owned bank accounts, real estate and automobiles that pass to the surviving joint owner by "right of survivorship". Married couples frequently own their homes and other assets in joint tenancy, and parents sometimes own bank accounts with one or more of their children for convenience. When one joint owner dies, the jointly held property passes directly to the survivor and avoids probate. However, when the surviving joint owner later dies, that same property can end up in probate court because of the change from joint to sole ownership. Other non-probate property may include life insurance policies and pension plans that pay cash benefits directly to survivors, and property held in trust. There are separate administrative tasks required to have some non-probate property re-titled in the names of the survivors.