California Probate Triggering Assets
Do I have assets which would trigger probate in California? Many people either do not know of the Probate process in California or they do not know what assets would trigger probate. This article will describe what assets cause your estate to go through the probate process and what assets do not trigger probate.
Probate Triggering Assets
- Real Estate
- Checking, Savings or Brokerage Accounts
First you will want to figure out if the value of the property (the estate) is worth $150,000 or less. To do this:
Include
- All Real Property
- All Bank Accounts (taxable accounts, such as checking, savings or brokerage).
- All personal property
- All life insurance or retirement benefits that 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 a trust, including a living trust.
- Real or personal property that the person who died owned with someone else as 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 rubtract the debts of the person who died.)
- Bank accounts that are owned by multiple persons, including the person who died.
If the Estate is valued under $150,000
If the estate is valued under $150,000 following the calculation methods above then a Small Estate Affidavit can be filed. California has a procedure that allows inheritors to skip probate altogether when the value of all the assets left behind is less than $150,000. All an inheritor has to do is prepare a short document, stating that he or she is entitled to a certain asset. This document, signed under oath, is called an affidavit. When the person or institution holding the property — for example, a bank where the deceased person had an account gets the affidavit and a copy of the death certificate, it releases the asset.
If the estate is valued above $150,000
If the estate is valued above $150,000, then a probate must be filed. If probate is necessary, someone must come forward to start the process. If there is a will, the executor named in the will should start the process. If there is no will, or the person named to serve as executor is not available, then usually a family member asks the court to be appointed as the “administrator” of the estate.
In most states, lawyers charge by the hour or collect a flat fee for probate work. Not so in California. It’s one of only a few states that let lawyers charge a “statutory fee”—an amount that is a percentage of the value of the assets that go through probate. The percentages are set out in state statutes. (Cal. Probate Code § § 10810, 10811.)
