I regularly get asked the question whether probate administration is necessary by a family member of a recently deceased person. Whether probate is necessary will depend on the assets owned by the decedent, and the title and value of those assets.
Probate is essentially the court-supervised transfer of a decedent’s assets to his/her beneficiaries named in the Last Will & Testament. If the decedent failed to create a valid Will prior to his/her death, then the assets are passed to the decedent’s heirs at law, determined by California intestacy laws. During the probate administration process, a personal representative (called either an Executor or Administrator) is appointed to carry out a number of tasks, including collecting the decedent’s assets, paying creditors, and distributing the remaining assets to the decedent’s beneficiaries/heirs. The personal representative hires an experienced probate attorney in Los Angeles to initiate probate and guide him/her through the probate administration process. For more information, see FAQ The Probate Process. For examples of disputes that may arise during probate, see Probate Dispute.
To determine whether probate is necessary, the first step is to obtain the title/ownership of the decedent’s assets. Assets held in joint tenancy, in a living trust or irrevocable trust, or having a beneficiary designation do not require probate. However, assets that are in the decedent’s name alone and have no beneficiary designation will require probate only if the gross value of the decedent’s probate-able assets (the assets that require probate administration) is greater than $100,000.
For example, a person dies leaving three assets: one residence in Los Angeles worth $500,000, one savings account with $50,000, and one life insurance policy with a death benefit of $200,000. The Los Angeles residence is titled in the name of the decedent and his daughter, in joint tenancy; the bank account and life insurance policy are titled in the decedent’s name alone, but the life insurance policy has a beneficiary designation naming the decedent’s son as sole beneficiary.
Any experienced Los Angeles probate attorney will tell you that probate is not necessary in this situation. Even though the decedent’s estate is worth $750,000, the decedent’s only probate-able asset is the savings account worth $50,000, which is less than the minimum $100,000 requirement. The residence in Los Angeles passes automatically to the decedent’s daughter, since she is the surviving joint tenant. The son can obtain the proceeds of the life insurance policy directly from the life insurance company since he is named as the beneficiary. A family member can obtain the $50,000 from the bank account, but is obligated to distribute the proceeds to the decedent’s beneficiaries or heirs.
