While not all assets that the decedent owned are subject to probate, the following assets are usually subject to the probate process:

• Assets in the deceased person's name alone.
• One-half of each asset owned as community property in the decedent's name with his or her spouse.
• The deceased person's portion or share of an asset where the asset is owned as tenants in common with other people.
• Personal property assets, which are owned but are not registered as the personal property of the Decedent, such as furniture, jewelry, etc.

California law provides that a probate is not necessary if the total value at the time of death of the assets, which are subject to probate, does not exceed a certain amount. The dollar amount is changed from time to time. There is a simplified procedure for the transfer of these assets.

• This number does not include vehicles and certain other assets.
• There is also a simplified community property set aside procedure if all the assets owned by the Decedent are community property with a surviving spouse.

Assets Not Subject to Probate

Certain Assets are not required to go through probate to vest in an heir or other person. Even though there may be a probate for a portion of assets owned, the following assets are not subject to the probate process:

• Assets held in joint tenancy with another person or persons.
• Assets held in a living trust.
• Assets such as life insurance and IRA benefits, where a beneficiary is named.
• Assets in a bank or savings and loan account in the deceased person's name as "trustee" for someone else.
• Assets which can be registered in a person's name and which are "payable on death" (P.O. D.) or "transfer on death" (T.O.D.) to someone.
• Assets passing to the surviving spouse. If the deceased person owned assets in his or her name alone but these assets are left by will or pass by intestate succession to the surviving spouse, no probate is necessary.
• Assets registered by husband and wife as "community property with right of survivorship." As mentioned above, California has a simplified legal process referred to as a "spousal confirmation proceeding." Here, a petition is filed with the court, notice is given to certain parties, and if no one objects, the court approves the assets as going to the spouse.

This procedure can only be used for husband and wife. For example, Husband has $500,000 of separate property stock in his name alone. He has a will, which leaves everything to his wife. His wife can go through this spousal confirmation proceeding. The advantage is that there is no fixed fee as there is for probate, and the process takes approximately 30 to 60 days instead of several months.

Let us know if you need a referral to an experienced probate attorney.