What Is Probate?

Answers by Attorney Realtor John McConnin for Executors, Trustees and Personal Representatives


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Q 1.  What is probate?

A “Probate” is the court-supervised administration of a decedent’s estate. The procedure begins with the filing of a petition with a probate court for the probate of a decedent’s will or for letters of administration if there is no will.

The probate proceeding involves “proving the will” (if there is a will), appointing the personal representative, determining the decedent’s assets which are subject to probate, determining and paying the decedent’s debts and taxes, and transferring title to the beneficiaries (if there is a will) or to the heirs at law (if there is no will).

For more information about probate and the transfer of real property, please see legal article, Probate Sales of Real Property.

Q 2.  What property is subject to probate?

A The probate proceeding, generally, is required only for property to which the decedent directly held title at his or her death, and not property which is indirectly held, property owned by contract, or which passes by operation of law to another at the decedent’s death.

Q 3.  What property is not subject to probate?

A  The following property is not subject to probate administration:

  1. Property held in a trust (Cal. Prob. Code § § 5000, 13050, Estate of Heigho (1960), 186 Cal. App. 2d 360, 364-365);
  2. Property held by decedent as a fiduciary or as trustee for another (e.g., Totten Trust) (Cal. Prob. Code § § 80, 5000);
  3. Property held in joint tenancy (Cal. Prob. Code § § 5304,  13050);
  4. Property held in a multi-party account (Cal. Prob. Code §§ 5304, 13050);
  5. Property which is a life estate (Cal. Prob. Code § 13050);
  6. Property held as community property with the right of survivorship (Cal. Civ. Code § 682.1);
  7. United States Savings Bonds (Cal. Prob. Code § 5000, Free v. Bland (1962), 369 U.S. 663, 669);
  8. TOD (Transfer on Death ) Registered Securities (Cal. Prob. Code § 5500);
  9. Property owned by contract such as life insurance proceeds (unless the policy directs payment to “the estate”) (Cal. Prob. Code § 5000);
  10. Benefits payable to a designated beneficiary such as retirement programs, IRA or Keogh plans, deferred compensation benefits, annuities (Cal. Prob. Code § 5000);
  11. Benefits payable to a designated beneficiary on a POD (Payable on Death ) bank account (Cal. Prob. Code § § 5000, 5340,13050);
  12. Employment-related death benefits (Cal. Prob. Code § 5000);
  13. Statutory benefits such as social security, veterans’ benefits, or workers’ compensation that have POD provisions for naming beneficiaries (Cal. Prob. Code § 5000);
  14. Automobiles (and other vehicles or vessels) owned in beneficiary form (form of ownership includes one owner and a direction to transfer ownership of the vehicle/vessel to a designated beneficiary on the owner’s death) (Cal. Veh. Code § § 4150.7, 5910.5, 9852.7, 9916.5; Cal. Prob. Code §  13050);
  15. Mobilehomes, commercial coaches, truck campers, floating homes (Cal. Health & Safety Code § §18080.2, 18102.2; Cal. Prob. Code § 13050).

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