Probate Articles

Orange County Probate Attorney

Cases When Probate Administration Becomes Necessary and How to Proceed
The top question I get asked as a probate attorney, is whether assets after death have to be probated. An attorney's favorite answer is "it depends". If the deceased has a valid Trust, in most cases, no probate is necessary. Also, no probate is necessary for Non-Trust Assets where non-administrative means of succession exists, for example:
Assets not governed by either will or intestacy, which include assets in joint tenancy, remainders after life estates, pay-on death or transfer on death ("Totten Trust") accounts, and life insurance, retirement plans and annuities with valid non-estate beneficiary designations; and assets governed by will or by interstate succession with regard to:

1. Affidavit re community real property - recorded afer 40 days.
2. Spousal (or Domestic Partner) property petition for passing either Community or Separate Property without administration.
3. Affidavit for transfer of Personal property less than $100,000 after 40 days (useful for DMV).
4. Petition with inventory and appraisal for real property less than $100,000.
5. Affidavit filed with the court where real property is than $20,000 after six months.

Probate is necessary if:
1. There is Separate Property in Decedent's Name as an individual, and there are non-spouse or domestic partner successors in interest.
2. There is a lack or failure of valid beneficiary designation on insurance policies, annuities or retirement plans or intentional designation of an estate as a beneficiary.
Also, Probate is necessary if you have a "Combination Plate" where there is a:
1. Trust plus non administrative procedures described above and or summary proceedings.
2. A probate Pourover Will plus a Trust.
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