Navigating California’s probate process can be confusing, especially when trying to determine whether filing a probate estate is even necessary. The good news? In many cases, probate isn’t required at all.
When Probate Isn’t Needed
Most assets today are designed to avoid probate entirely. Whether probate is required depends on how the deceased person’s assets were held. Here are common examples of probate-avoidance tools:
- Life Insurance: Life insurance policies typically name a beneficiary. Upon the insured person’s death, the proceeds are paid directly to the beneficiary—no court involvement necessary.
- Joint Tenancy with Right of Survivorship: If a home or bank account is owned jointly with right of survivorship, it automatically passes to the surviving owner upon the other’s death.
- Revocable Living Trusts: This is the most common probate-avoidance tool in California. When someone places their assets into a revocable living trust, those assets are governed by the trust. Upon their death, the trustee can distribute the assets directly to the beneficiaries without ever opening a probate case.
- Pay-on-Death (POD) and Transfer-on-Death (TOD) Accounts: Bank accounts, retirement accounts (like IRAs or 401(k)s), and even brokerage accounts often have named beneficiaries. These accounts pass automatically upon death.
- Business Entities: Corporations, LLCs, and partnerships may have operating or buy-sell agreements that dictate what happens to an ownership interest when a member passes away. These agreements can also avoid the need for probate.
When Probate Is Required
Probate becomes necessary when the decedent owned assets in their sole name without a designated beneficiary or joint owner. For example, if your father owned a house solely in his name—no trust, no joint tenant, no transfer-on-death deed—that property cannot be transferred to heirs without going through the probate process.
So, What Happens If You Don’t File Probate?
If the estate consists only of non-probate assets, then nothing needs to be done. There’s no legal obligation to open probate when it’s not required.
However, if there are probate-required assets and no one opens probate, those assets remain stuck in the decedent’s name. They can’t be legally sold, transferred, or refinanced. We’ve seen situations where a house sat in a deceased person’s name for decades. Family members continued to live there, unaware that probate was necessary to formally transfer ownership. The issue usually comes to light when someone tries to sell or refinance the property—only then do they realize probate must be filed to proceed.
Is There a Deadline to File Probate?
Interestingly, California has no formal statute of limitations for filing probate. That means even years—or decades—after someone dies, probate can still be filed. However, delays can create complications, including lost records, deceased heirs, or disputes among surviving family members.
Final Thoughts
If you’re unsure whether probate is necessary, it’s always wise to consult with a probate attorney. Properly assessing how assets are titled and whether probate is required can save time, money, and unnecessary legal hurdles.
We’ve helped hundreds of families navigate California’s complex probate process and determine when probate is necessary. Contact us today to see how we can help you too.
