Probate is the legal process used to transfer certain property after a person dies. Depending on the type of property, how it is owned, and the value of the estate, a formal probate proceeding may or may not be necessary. Importantly, having a will does not by itself avoid probate. An estate can still require probate even when the deceased person left a valid will.
For many California families, thoughtful estate planning can reduce or eliminate the need for a formal probate proceeding. Here are some of the most common ways property may pass outside formal probate.
1. A Revocable Living Trust
A properly prepared and funded living trust is one of the most common methods used to avoid probate. Assets transferred into the trust during the owner’s lifetime can generally be administered by the successor trustee and distributed to the beneficiaries without a formal probate proceeding.
Simply signing a living trust isn’t enough. Assets that are intended to be controlled by the trust generally need to be properly transferred or titled to the trust. California Courts recognizes property held in a living trust as property that may pass without formal probate.
2. Beneficiary Designations
Many assets allow the owner to name someone who will receive the asset upon the owner’s death. Examples can include life insurance, retirement accounts, pensions, annuities and certain bank accounts.
When a valid beneficiary designation applies, the asset can generally pass directly to the named beneficiary rather than becoming part of a formal probate proceeding.
3. Joint Ownership With Right of Survivorship
How property is titled can determine what happens when one owner dies.
For example, property held in joint tenancy generally passes to the surviving joint tenant. Certain jointly owned bank accounts may also include survivorship rights. California community property may have survivorship rights when it is specifically titled as community property with right of survivorship.
Because changing ownership of property can have legal and tax consequences, individuals should obtain appropriate professional advice before changing title solely to avoid probate.
4. Payable-on-Death and Transfer-on-Death Arrangements
Some financial accounts permit a Payable on Death (POD) or similar beneficiary designation. The account remains under the owner’s control during life and passes to the designated beneficiary after death.
California also permits Transfer on Death deeds for qualifying real property. A properly completed and recorded TOD deed can allow the property to pass to the named beneficiary without formal probate.
5. California’s Simplified Procedures for Smaller Estates
Not every estate that contains probate property requires a full probate administration.
For deaths occurring on or after April 1, 2025, California’s maximum estate value for transferring qualifying personal property under the small-estate procedure is $208,850. The applicable limit depends upon the date of death, and certain property isn’t included when determining the estate’s value.
California also made a significant change involving a deceased person’s primary residence. For deaths on or after April 1, 2025, a simplified court procedure may be available for a qualifying primary California residence valued up to $750,000. This provision is limited to the decedent’s main home in California and has specific requirements.
These procedures don’t mean every estate under those amounts automatically avoids probate. Eligibility depends upon the assets and circumstances involved.
6. Property Passing to a Surviving Spouse or Domestic Partner
Some property may be transferred or confirmed to a surviving spouse or registered domestic partner using a spousal property petition, which can be faster and less complicated than a full probate administration. Whether this procedure applies depends upon ownership of the property and other circumstances.
Does a Will Avoid Probate?
No. This is one of the most common estate-planning misconceptions.
A will provides instructions about how property should be distributed and can nominate an executor, but it doesn’t automatically remove assets from the probate process. California Courts specifically notes that an estate may need probate even when the deceased person had a will.
A living trust works differently because property properly held by the trust can generally be administered outside formal probate.
What Happens When Probate Cannot Be Avoided?
If assets cannot be transferred through a trust, beneficiary designation, survivorship ownership or one of California’s simplified procedures, formal probate may be necessary.
The court appoints a personal representative to administer the estate. The process can involve identifying and inventorying estate assets, notifying creditors, paying debts and expenses, and ultimately distributing the remaining property to the appropriate beneficiaries or heirs.
TEAM Legal Document Services provides California probate document preparation for self-represented individuals who have decided to handle a probate without attorney representation. We prepare probate documents based upon the information and instructions provided by our customers.
Planning Ahead Can Make a Difference
One of the best times to address probate is before it becomes necessary. Reviewing how property is titled, beneficiary designations and existing estate-planning documents can help identify assets that could otherwise become subject to probate.
TEAM Legal Document Services prepares living trusts, wills, powers of attorney, advance health care directives, deeds and related estate-planning documents based upon our customers’ instructions. We also prepare trust amendments for customers who need to update an existing living trust.
TEAM Legal Document Services is not a law firm and does not provide legal advice or legal representation. Individuals who need advice about which estate-planning or probate procedure is appropriate for their circumstances should consult a qualified attorney.