What assets must go through probate in California? This is an important question to ask if you have an estate and are planning for the future. It’s important to understand what could happen to your assets after you die. Deceased individuals leave behind several different types of assets, but not all of them will be subject to California probate. Speaking with an Ontario, California, probate attorney could be very helpful in gaining a complete understanding of probate laws and how they could affect you.
Assets Subject to California Probate
Assets that the deceased owned in their name before passing could be subject to probate. This could include real estate or personal property. Other common probate assets include personal homes, vacation homes, auto vehicles, boats, furniture, art, or household items.
This could also include investable and intangible assets such as stocks, bonds, funds in a checking, savings, or brokerage account, interest in a business or company, or any other asset in their name. Intellectual property rights, copyrights, patents, and trademarks could also be subject to probate. Some other examples of assets subject to California probate include:
- The decedent’s portion of a property that is classified as a “tenant in common.”
- Half of the deceased’s community property that was acquired during the marriage.
- The deceased’s separate property. This includes assets solely in the deceased’s name and any assets acquired outside of the marriage or inherited.
Assets Not Subject to California Probate
Any property that is not in the deceased’s name may not be subject to probate. A common asset that avoids probate is real estate. In many cases, real estate is held by multiple parties, often with a right to survivorship arrangement. This means that when one owner dies, their interest is passed to the surviving owners. This transfer of ownership interest happens entirely outside of probate court.
For example, if spouses own their home under a joint with the right of survivorship arrangement when one spouse dies, the ownership of the home is transferred directly to the surviving spouse. This is done automatically and without going through probate. In addition to this example, other types of assets that can be transferred outside of probate include:
- Retirement accounts. Many retirement accounts, such as 401(k)s and IRAs, have a beneficiary decision. This means that assets in these accounts have predetermined destinations and are excluded from probate.
- Trustee accounts. If the decedent was named as a trustee, conservator, or guardian for any assets held in a bank or credit union, they can avoid probate.
- Life estate. This refers to any life estate interest in a family-owned property. This gives someone the right to live in a property until death. Any life estate interest owned by the deceased will be terminated upon death and not subject to probate.
- Assets within a trust. One of the biggest benefits of creating a trust is that assets held within it are exempt from probate court. Any assets transferred into a trust can be considered no-probate property. This means the trust itself owns the assets, not the deceased. An agreement can be created within the trust outlining how assets should be distributed upon death.
- Pay on death accounts. These are referred to as POD accounts. Any assets or securities held in POD or transfer on death “TOD” accounts are exempt from probate.
FAQs
Q: When Should Probate Be Filed in California?
A: Probate should be filed in California as soon as an individual dies. Filing as soon as possible helps ensure the assets are properly transferred to the deceased’s heirs. However, there are cases where it’s better to wait some time before filing. For example, if the deceased died with substantial credit debt or other unsecured debt, it may be better to wait to file. Speak with an experienced probate attorney for legal advice on when you should file.
Q: What Triggers Probate in California?
A: Probate can be triggered in California when a deceased individual’s estate is worth more than $166,250 and cannot be disbursed using any transfer options. Assets that don’t qualify for the simpler transfer options are typically real property. The probate process must be started by someone, usually the executor identified in the will. In cases where no will or executor is available, family members can request a court-appointed administrator. There are, however, potential ways to avoid probate, but you should speak with an attorney.
Q: How Long Does Probate Take in California?
A: Probate in California can vary in time depending on the complexity of the case. It also depends on the amount, location, and variety of assets. For example, if there are a lot of assets that need to be valued, such as art or collectibles, the process can take longer. The executor or administrator is responsible for fulfilling all necessary tasks and collecting documentation before they can submit their report to the probate court. A judge will review the report and conclude the process.
Q: Can Assets Be Transferred Without Probate Court in California?
A: Yes, assets can be transferred without probate court in California if they qualify. Asset transfers outside of probate are considered simple transfers of property. Transfers can happen outside of probate if the estate value is below a certain threshold, the estate is made up entirely of community property, or there is a trust or will in place. Speaking with a qualified probate attorney can be helpful when preparing for probate.
Q: Who Handles Probate in California?
A: Probate in California is handled by the party named in the deceased’s will, known as the executor. If there is no will or executor named, the court can appoint one. This will likely be a family member. This person will be responsible for all obligations and legal proceedings related to the probate process and accounting for the estate. Depending on the complexity and amount of assets, this could require a lot of leg work.
A Legal Team That Can Help
Probate in California can be an intimidating process to undergo. However, it is a necessary and important part of transferring assets. It’s your job to set expectations and understand how the process will work. The legal team at Quinn & Dworakowski, LLP has the experience and knowledge needed to help you along the way. Contact us today to speak with a member of our team.
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