Probate Assistance

Probate Court

You may or may not need to go to probate court to obtain title to property belonging to a dead person.  Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property. And deciding if probate court is needed may also depend on how the property is owned (the type of title ownership) or if there is some type of contract with beneficiaries.

photo of a last will and testament doc

For example:

Type of Title Ownership: Sometimes all or some of a dead person's property passes directly to the beneficiaries because of how the property is owned. So if the property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to clarify his or her ownership of the transferred property.

Type of Contract:  Sometimes all or some of a dead person's property does not need to go through probate to pass to the beneficiaries. This is because this property is a type of contract with named beneficiaries. Examples of this are life insurance that pays benefits to someone else other than the dead person's estate, retirement benefits, death benefits, and trusts.

If the Person Who Died Left $166,250 or LESS

If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $$166,250 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death -not on what the property is worth now.

Keep in mind, this process CANNOT be used for real property, like a house. If the person left $166,250 or less in real property, including some personal property, you may be able to use a form called Petition to Determine Succession to Real Property (Estates $166,250 or Less).  You will have to file the Petition with the court, obtain and file an Inventory and Appraisal, and provide notice of hearing.

To use the simplified process for transferring personal property

First, figure out if the value of the property (the estate) is worth $166,250 or less.

To do this include:

  • All real and personal property.
  • All life insurance or retirement benefits will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).

Do not include:

  • Cars, boats, or mobile homes.
  • Real property outside of California.
  • Property held in trust, including a living trust.
  • Real or personal property that the person who died owned with someone else (joint tenancy).
  • Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.
  • Life insurance, death benefits, or other assets not subject to probate that pass directly to the beneficiaries.
  • Unpaid salary or other compensation up to $5,000 owed to the person who died.
  • The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)
  • Bank accounts that are owned by multiple people, including the person who died.
  • If the total value of these assets is $166,250 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit.
  • If the dead person's property is worth more than $166,250, none of the exceptions apply. You must go to court and start a probate case.
  • Steps to Take If the Case Belongs in Probate Court