What is Probate?

In California, a person who passes with a total of more than $150,000 in personal and real property or more than $50,000 in real property held in their individual name (not the name of a living trust) is subject to administration by the Probate Court. If the decedent has a will, the estate may still be subject to probate absent a trust.

  • Example of assets included in the Probate Estate:
    Real estate, vehicles, checking and savings account, stocks, investment accounts, jewelry and other personal property
  • Examples of assets excluded from the Probate Estate:
    Life Insurance, IRAs, 401(k) accounts, assets held in joint tenancy, and other assets that have a payable-on-death beneficiary
  • Who decides distribution in Probate?
    • If there is a will, the terms of the will control how distribution is made.
    • If there is not a will, the rules of California’s intestacy laws are applied by the Judge in the Probate Court. Generally, the idea of the intestacy law is to distribute your estate how the government “thinks” you would want it distributed if you had prepared a will.
    • The intestacy laws provide that your estate be distributed to your spouse (if any) and your children (if any). If you are unmarried and have no children, your estate will be distributed to your parents. If your parents predecease you, then there is a specific set of rules that apply to determine your next of kin.

It is important to know that if the decedent died without a will, there are very few exceptions to the required distribution described above. If the decedent had an estranged spouse or a child he/she had not spoken to in 20 years, the spouse or child would still receive their full intestate share of the estate. The Judge in the Probate Court does not have discretion to pick and choose who “deserves” to receive the estate.