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Frequently Asked Questions (FAQs)

Probate

When is probate required and how does it work?

Probate generally refers to the formal court supervised administration of a decedent’s estate. When is probate required? First, let’s review what common assets are not subject to probate.

• Assets held in a living trust.

• Payable on death assets such as retirement accounts, annuities, and life insurance policies. However, such assets may be subject to probate if all of the beneficiaries you name die before you.

• Assets held in joint tenancy.

• Property which passes to the surviving spouse. Even though a formal probate mat not be necessary, court involvement might be needed to transfer the asset to the surviving spouse.

• Small Estates. Very generally, if the total collective value of assets which do not fit into any of the categories above is $150,000 or less, no probate is required to transfer such assets after death. Such assets can be transferred, usually by a declaration executed pursuant to probate code section 13100, but not sooner than 40 days after death. Such assets may include the decedent’s automobile or small bank accounts solely in the decedent’s name at death.

Probate is initiated when an individual, such as the named executor of the will (if there is one), files a petition requesting that the will be admitted to probate and that the court appoint the petitioner as the personal representative of the estate. Probate provides safeguards: the acts of the personal representative are subject to court approval; certain acts actually require court approval before they can be taken. When the estate is ready to be distributed, the personal representative often has to submit a formal account to the court, itemizing estate income, expenses, and sales, for the court’s approval.