Does your loved one’s estate require formal probate?

Probate is the court-supervised process of settling the debts and distributing the assets of a deceased person. When your loved one dies, you may find yourself needing to assist with the probate process.

The probate process tends to be costly and cumbersome. However, you should note that not all assets require the formal probate process. Even estates that require probate may include some assets that will not require probating.

Automatic pass-through assets

Any assets in the decedent’s name that automatically transfer to another party when the owner dies do not have to go through probate. This might include IRAs and 401(k) accounts with death beneficiaries and property held in joint tenancy (which is not necessarily the same as “jointly owned” property). In the case of IRAs or other accounts with death beneficiaries, the beneficiary designations by the decedent are sufficient to transfer the accounts directly to the named beneficiaries without the need for court intervention. In the case of joint tenancy property, the asset (which could be a home or an account) goes directly to the surviving joint tenant by operation of law.

Also, if the person had a spouse, some assets may go directly to the surviving spouse by law or according to the terms of the asset. There may be no need for the court to step in. For example, many pension plans and government benefits include terms that provide the assets or benefits directly to a surviving spouse without the need for court-supervised administration.

NB: It is not true that just because you are a surviving spouse, all assets go to you without the need for probate. For example, if your spouse inherited your residence, the property may have to be probated and your children might be beneficiaries of part of the property.

Lower valued estates

If the estate does not have many assets, it may not require formal probate. The State of California publishes a schedule, which is updated from time to time, determining the values of assets that can be passed without the formal probate process. These values are adjusted regularly for inflation. For example, if a decedent died between April 1, 2022 and March 31, 2025, up to $184,500 of real property (house) or personal property (accounts) can be passed to heirs with a properly drafted and executed affidavit.

These are just some options to avoid probate. In addition to these options, there are expedited court procedures that involve the court, but are much faster and less cumbersome than a full probate. An experienced probate and estate planning attorney can help you find options that may be available to help you determine if any of these options are available for your situation.