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What is Subject to Probate?
The starting point in determining which assets are subject to probate is to ascertain the ownership interest which the decedent has in each asset. If the decedent is the sole owner of an asset and title is vested completely in his or her name, this asset is generally subject to probate. However, when title to the asset is not solely in his or her name, further inquiry should be made.
An asset is not subject to probate when the title to the asset on the decedent's death vests by law in another person or when the decedent's death does not cause any shifting in the title to the asset. For example, assets held in joint tenancy with right of survivorship, in a bank account trust, or in a funded living trust, even though revocable, and assets disposed of by contract, such as life insurance proceeds, are not subject to probate administration.
An asset owned by two or more persons as tenants-in-common will be subject to probate only as to the decedent's interest. The interests of the survivors already belong to them and are not included in the decedent's probate estate.
If an asset is owned by a husband and wife as community property, the surviving spouse's one-half may or may not be subject to probate depending on the law of the particular state. In California, for instance, such one-half is not subject to probate. The surviving spouse may, however, elect to subject his or her one-half to probate to limit personal liability for the debts of the decedent chargeable to the community property (see Cal. Prob. Code §§ 13502 and 13553).
In some states, as in California, the decedent's assets (whether or not they are community property) are not subject to probate, to the extent they pass to a surviving spouse under a will or by the laws of intestacy (see Cal. Prob. Code § 13500). The decedent's interest in assets passing into a trust must be probated, notwithstanding that the trust is for the benefit of the surviving spouse. (Cal. Prob. Code § 13501(b).) Even when the law does not require that the decedent's assets be probated because they go outright to the surviving spouse, it may still be necessary to have a court determination that the assets do, in fact, pass to the surviving spouse. This procedure may be required by a title company or stock transfer agent who may be unwilling to insure or transfer title without it. Their rationale is that should it later turn out that the asset really passes, for example, under a more recent will to someone other than the spouse, an incorrect transfer will have been made. Accordingly, Cal. Prob. Code §§ 13650 to 13660 provide for court confirmation of the fact that the assets pass to the spouse and set forth the procedure to be followed in obtaining such confirmation.
When the estate is very small, assets which are subject to probate may in many jurisdictions be collected or set aside under a summary type probate procedure which will to a large extent avoid court involvement.
In addition to Probate Gaston & Gaston APLC also handles Wills and Trusts, just call 619-398-1882 for immediate assistance or fill out the Contact form at right.
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