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My Loved One Died; How Do I Know if a Probate is Necessary in California?


Virtually every decision regarding probate is based on title to or value of assets owned by the decedent.

Title is important because ownership can transfer as a matter of law (e.g. joint tenancy with right of survivorship, where the surviving joint tenant takes by recording an affidavit, death of joint tenant); or a bank account might be titled to a trust (e.g. John Doe and Mary Doe, trustees of the John Doe and Mary Doe 2015 Family Trust), in which case the trust controls what is in the account.  In these instances, for those assets, a probate would not be necessary.

However, where there are no joint tenancy assets, payable on death accounts, trusts or other legal means by which property transfers to another without probate, one must then look to value.

In general, if the total estate of the decedent (not counting those assets which pass because of their title as described above) is $150,000.00 or less and does not include real property, California law permits the heirs to use an affidavit procedure (Probate Code §13101) to obtain ownership of the assets.  This is very easy when the sole account of the Decedent is $149,000.00.  However, if the assets exceed $150,000.00, probate will be necessary to have those assets transferred to the decedent’s heirs.

A similar procedure is available for California real property worth less than (the last time I checked) $20,000.00.  No probate would be necessary to transfer ownership.  But if the value exceeds $20,000.00, a probate is required for that asset to be transferred to the decedent’s heirs.

Cash or stock accounts are fairly easy to value; just look at the bank or stock statement.  Greater difficulty exists when one considers stock in a closely held business, ownership of a sole proprietorship, an interest in a partnership, the value of a jewelry or a gun collection, or other assets that, while clearly having value, may not have an obvious value.

What then?  Appraisal of those assets is required; sometimes by an economist, other times by a certified appraiser but in all events by someone qualified to give an appraisal of value, so that everyone can understand why a probate procedure must be followed rather than the use of an affidavit.

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