What Determines Going to Probate Court or Not

Wednesday, August 24th, 2011

Now that we know what probate is let’s take a look at what determines having to go to probate court. The first step is determining if an estate is over the monetary limit to avoid probate court. While the minimum amount varies throughout the country, in California if an estate is $100,000 or more it will most likely go to probate.  It should be noted that this is not entirely a hard fast rule, with exceptions being made if there is a surviving spouse or the deceased has a pre-established estate plan. The other minimum for probate in California is on real property, which must go to probate if it is worth $20,000 or more. Living in a state like California, one can see how this would very easily affect the majority. Whether you own property or not, the dollar amount of your estate can add up quickly making estate planning a necessary undertaking for all individuals wanting to avoid probate.

Assets that fall under the $100,000 umbrella that determine if one’s estate must go to probate are: bank accounts, stock, bonds, mutual funds, brokerage accounts, any other investments, real property and other assets along those lines that the deceased owned in his/her name.  The term real property can be a bit confusing, to define the legal term, is in reference to any property which is not moveable. This includes land, physical structures, attached equipment, anything that is growing on the land and any interests in the property. Interests would be things like the prospect of oil or other natural resources among other things.

That may seem like it covers most everything, however there are also quite a few assets that are not taken into account when establishing the worth of an estate. These include any trust assets, any pension accounts such as IRAs, 401Ks etc., joint tenancy assets, registered vehicles, life insurance, death benefits, armed forces pay, salary not paid before death up to $5,000, accounts with a named beneficiary and any pay on death accounts.

One should note that the value of these assets are determined based on the day of death. There are instances when an affidavit or declaration is not signed until years later, but none the less the worth of the estate is calculated based on the day the estate owner passes on.

Based on these parameters if an estate does not exceed $100,000, it does not need to go to probate. In this occurrence an affidavit or declaration needs to be signed at the minimum of 40 days after the death has occurred. Then such document can be used to collect the estate assets for the beneficiaries, heirs, trustees etc. In this case no documents need to be filed with the superior court and a lengthy legal process can be avoided.

Probate is avoidable and not a necessary step in the death process. To insure your loved ones do not have to go through this lengthy process in a time of grief an estate plan is necessary. Even if you believe your estate worth falls under the $100,000 mark, to ensure the graceful passing of your estate to those you intend, a will still is necessary. All of this is done to save you loved ones time, money and grief in an already difficult period.


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