Probate

In most cases where one dies with a trust in place, a probate will not be necessary. However, if the property was not properly transferred into the trust or there is a contest of aspects of the trust then a probate may be necessary.

In circumstances, when one dies with no trust in place, but they have a will or no will then probate is always necessary.  Probate is the court's way of supervising the distribution of the decedents' assets and titles to those named as beneficiaries in the will or the heirs where there is no will.

What does not have to go through probate?

With a little preplanning, anyone can make sure the following items can avoid the probate process:

• Liquid Assets of $166,250 or less that are not real property in California – In the case where the decedent dies with just liquid assets of $166,250 or less that are not real property assets in California then a California Small Estate Affidavit may be done pursuant to California Probate Code Section 13100.
• Items Placed in a Living Trust– All items left in a living trust are owned by the trust and not the person who has died.  These items do not need to be handled through probate court.
• Beneficiary-Named Items Anything that has a beneficiary already named in the document does not have to go through probate. For example, life insurance can have beneficiaries clearly stated on the policy.
• Property Held Jointly with Survivor’s Rights – So if someone else’s name is on the deed, they own the property alone so there will be no need for the probate court to decide anything.
• Payable on Death And Transferrable on Death Assets – Assets such as vehicles, real estate (not in all states), bank accounts, stocks, and even retirement accounts helps these items bypass probate and go straight to the beneficiary that is documented to have a pay on death or transfer on death beneficiary do not need to be probated.

All other items that are not listed above will have to go through probate