The estate planning actions individuals take can affect the probate process after their death, potentially impacting those who may be poised to receive remaining assets. Probate is the court process for legally transferring those assets, and during this action, the outstanding financial obligations of the decedent are handled as property distribution is addressed. Additionally, probate is used to determine the validity of a will if one exists.
The probate process may not be required in some cases. Some of the factors determining whether probate is necessary may include the types of assets involved, the individuals claiming a right to assets, and the amount of money at stake in the estate. In some cases, an asset may include joint tenancy with ownership continuing with a surviving individual on an account. In other cases, a beneficiary may be named on an account so that ownership is transferred upon death. Although some legal actions may be required, these properties may be kept out of probate courts.
A simplified process for the transfer of property may be available if a decedent's estate is valued at less than $150,000. However, the simplified approach is not applicable with a house or other real property. A Petition to Determine Succession to Real Property may be used for such issues and must be filed with the court. The simplified process for transferring assets, meanwhile, involves valuing the property to be transferred and filing an affidavit after at least 40 days have elapsed from the time of an individual's death.
Because the types of property to be considered for a simplified process can be limited, it may be beneficial to seek guidance from an estate administration lawyer in determining whether probate can be avoided. Additionally, legal counsel may be helpful in approaching the probate process if a sizable estate exists.
Source: California Courts, "Wills, Estates, and Probate", September 14, 2014