To Probate or Not to Probate: When must a decedent's assets pass through Court?
When do you need to probate the assets of a decedent? First of all, let's make sure we know what "probate" means--it sounds like a medical condition. But in fact it is simply a court process where a decedent's assets are taken over by an appointed "personal representative", the last debts and bills of the decedent are paid, and then the assets are eventually distributed to the heirs (if there is no Will) or to the named beneficiaries under the Will.
Probate only applies to assets that are owned, or titled, in the indiviudal name of the decedent at the time of his or her death. Probate does NOT apply to things like joint tenancy with right or survivorship, beneficiary designations, pay-on-death accounts or transfer-on-death account, or any assets held in a Trust. And since a majority of assets are held in one or more of these types of ownership, it can be rare when a probate is actually required.
Further, in California you can pass up to $150,000 of property (not including real estate) without having to open probate. Instead, you can use an affidavit of small estate, sometimes referred to as a "13100 Declaration" (see a sample 13100 Declaration). The "13100" refers to Probate Code Section 13100, which governs the transfer of small estates. For real property, the limit is $50,000 that can pass without probate. That is a very small number for California real estate (even after the market crash), so real property almost always must be probated if it is held in an individual's name (and not in joint tenancy) at time of death.
By the way, we often are asked what are "Letters Testamentary" or "Letters of Administration." Oftentimes, when a family member tries to wrap up a decedent's assets, they are told by a bank or financial institution that they need "Letters Testamentary" or "Letters of Administration." Those are not letters drafted by lawyers, they're not letters at all in the modern usage of that term. Rather, they are documents issued by the Court AFTER a probate has been opened and the Court has signed the order appointing the personal representative (the term "personal representative" is a catchall phrase that includes both Executors (who are named under Wills) and Administrators (that same thing as an Exeuctor except for estates where there is NO Will)).
The Answer: where a decedent dies owning assets in his or her own, individual name worth more than $150,000 (not included real estate), then you need to open probate to transfer the decedent's assets to the heirs or beneficiaries under the Will. If the decedent owned real property worth more than $50,000 in his or her own name, then off to probate you must go.
You can see a few of our aticles about the probate process here.