PROBATE. What it is and when you need it in California.

Probate Court How to Probate a Decedent's Estate

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1. What is probate?

Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the "decedent") to his or her beneficiaries.

Usually, you have to fill out court forms and appear in court to:

* Prove to the Court that the Will is valid (this is usually routine),
* Appoint a legal representative with authority to act on behalf of the decedent,
* Identify and inventory the decedent's property, and have that property appraised,
* Pay debts and taxes, and
* Distribute the remaining property according to the terms of the Will or to the decedent's heirs.

2. Is probate necessary?

If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims.

When there is property to transfer the probate process also provides for the distribution of the estate's property to the decedent's heirs.

3. Does all property go through probate when a person dies?

No. The term "probate estate" refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person's “non-probate estate.”

California has "simplified procedures" for transferring property for estates worth under a certain amount (from $20,000 to $100,000 depending on the circumstances and the kind of property).

There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy and life insurance and retirement benefits.

To learn more about these simplified procedures, see the Simplified Probate Procedures section of this website.

4. Should I choose the simplified procedures?

Not necessarily. Talk to a probate lawyer. There may be debts or tax claims that make probate a better option for you. If there are a lot of issues to handle, going through probate allows you to pay the person who deals with the creditors and taxing authorities.

5. Do life insurance or retirement benefits need to go through probate?

No. The benefits can be paid directly to a named beneficiary. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the persons named as beneficiaries. Bank accounts that are set up as pay-on-death accounts (PODs) or "in trust for" accounts (a "Totten Trust") with a named beneficiary also pass to the beneficiary without probate.

6. Do living trusts go through probate?

No. When a living trust holds title to some of the decedent's property, that property also passes to the beneficiaries without probate. (For more information, see the Financial and Medical Decision Making - Living Trusts section of this website.)