Probate is an antiquated term that simply means to prove-up a decedent’s Will.  It is a Court process where a decedent’s assets are gathered, creditors are paid, heirs are identified and located, and the assets distributed either according to the decedent’s Will or by statute if a decedent died without a Will (referred to as “intestate” distribution).

The probate process is centuries old and requires compliance with a strict set of procedural rules in order to start the process, administer the process and, ultimately, close the process successfully  (see our list of California Probate Forms).  The irony is that there are so few, if any, procedural hurdles for assets that pass outside the probate process.

For instance, in California, probate only applies to assets titled in the name of the decedent alone at the time of her death.  Many assets pass outside of probate (we refer to these as “non-probate assets”), such as assets that are held in joint tenancy (with right of survivorship), assets passing by beneficiary designations (such as life insurance and bank accounts) and of course assets held in a Trust.

The problem arises when an asset held in joint tenancy, for example, passes differently from the assets passing under a decedent’s California Will.  The Will may say all assets pass equally to the decedent’s children, but if an asset is held in joint tenancy with just one child, then that one child takes the asset regardless of the Will.  In other words, the Will does not control, or in any way affect, assets passing outside of probate.  This is an important point and may be surprising news for some people.

Another common misconception is that if someone dies without a California Will or Trust their assets pass to the State of California.  Not true.  Under California law, there is a scheme set up by State law that provides for the distribution of a decedent’s assets to their heirs at law if they die without a will.  Heirs at law include the decedent’s spouse, children, parents, brothers and sisters and even nieces and nephews, at times.

If you find that a decedent has died and there are assets subject to probate, either under a Will or without a Will, then it’s time to start the probate process.  That’s the subject of another blog post.