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Horizon Elder Law & Estate Planning Blog

Sunday, June 12, 2022

Do All Wills Go Through Probate in California?

No, not all wills have to go through probate in California, but all wills of individuals who lived in our state at the time of their death have to get filed with the court. The court in the county where the decedent lived will then decide whether the estate has to go through probate.

If you mistakenly conclude that the will of your close relative does not have to go through probate, but the will actually should have been probated, there can be negative and expensive repercussions. You should always consult with a California estate planning attorney for guidance about whether you need to take a will through probate.

Situations in Which Probate is Not Necessary

You do not have to go through probate if your deceased loved one had a living trust instead of a will. Living trusts often include “pour-over” wills that take care of the distribution of property that did not get transferred into the trust before the decedent’s death. Usually, the pour-over will does not have to go through probate.

Another situation in which the court will likely not require probate of the will is when all the assets can pass outside of probate. For example, if the deceased individual had a life insurance policy that named a specific person or organization as the beneficiary, the policy proceeds do not have to go through probate. On the other hand, if the policy owner left the beneficiary designation line blank or named his estate as the beneficiary, the life insurance proceeds might have to go through the probate process.

Other assets that can get distributed outside of probate if set up correctly include “Pay on Death” (POD) or “Transfer on Death” (TOD) accounts. POD and TOD accounts are usually bank or brokerage accounts. Also, retirement accounts typically have a beneficiary designation option.

What Happens if You Have to Probate the Will in California

Even if the judge requires you to probate the will, you might not have to use the formal probate procedures. California provides a simplified probate procedure for an estate with a value, at the time of the decedent’s death, of less than $166,250. The simplified procedure is easier, quicker, and less expensive than having to use the “full-blown” probate process.

Things That Can Complicate Probate in California

California follows the same general probate process that most states use, but do not assume that these are the only required steps. Depending on the facts of the estate’s circumstances, any of these stages could lead to controversy or additional work. There could disputes about:

  • The validity of the will. Someone might file a will contest, alleging that the will is a forgery, is not the last will, was the product of undue influence or fraud, or other allegations.
  • Who are the heirs and beneficiaries.
  • The value of any of the assets.
  • The claims (debts) creditors file against the estate.

Some of these problems can be avoided when a knowledgeable lawyer handles the estate administration. Issues that cannot be avoided can be resolved eventually. You will want to talk to a California estate planning attorney before embarking on the possible probate of the estate of your loved one. Get in touch with our office today for legal help, we offer a free consultation.


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