Do I Need to Open a Probate Estate?

“A loved one just passed away. Do I need to open a probate estate?”

At Charles D. Stark, we hear this question often. In most cases, the answer is yes – an estate gives you greater control over your loved one’s assets. Sometimes, though, you do not need to open an estate.

Probate is a legal process that identifies, locates, and secures the deceased person’s assets, authenticates and submits the Last Will and Testament, litigates changes to the Will, and notifying creditors of the estate, and providing others with an opportunity to file claims against the estate. The administrator of the estate, or executor, may use an estate account to pay creditors and taxes and to transfer assets to the intended beneficiaries or heirs of the estate. This process is lengthy and often complicated, particularly for those without experience as executors, but it is often necessary to ensure that the decedent’s assets are properly dispersed.

Why Open an Estate in California?

Opening an estate account facilitates access to the deceased individual’s funds, which are often frozen after their death. Estate accounts make it easier for the executor to endorse and deposit any payments made to the deceased and ensures accurate record-keeping for taxes and other purposes. Creating an estate account helps the executor avoid commingling their personal funds with the estate’s funds to protect the executor from accusations that they used estate funds as their own. Opening an estate account can also help protect the estate’s assets

Why Not Open an Estate?

In some cases, it is not necessary to open an estate in California to distribute the decedent’s assets.

Non-probate assets

Instances in which the assets are non-probate assets, such as

  • Assets held in a trust
  • Proceeds of a life insurance policy
  • Certain retirement accounts
  • Accounts designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
  • Certain types of jointly-owned property

Estate consisting of personal property valued less than $150,000

In cases in which an estate does not include a house or other real property, the assets of the estate may be distributed to the new owners by a probate attorney.

Estate consisting of personal property and real property valued at $150,000 or less

If the estate includes both personal and real property valued at less than $150,000, a probate lawyer may be able to file a Petition to Determine Succession to Real Property, a simplified probate procedure.

If you are the spouse or domestic partner of the deceased

If you are the spouse or domestic partner of the decedent, your probate lawyer may be able to file a Spousal or Domestic Partner Property Petition to transfer property to a surviving spouse or partner without a full probate proceeding.

The decision of whether to open an estate or not can add substantial stress and tension to families already dealing with the loss of a loved one. Creating an estate plan is one of the best ways to reduce the strain on your family. For more information about opening an estate, or creating an estate plan, contact your Sonoma County attorney, Charles D Stark. We provide legal services in estate planning, trusts and estates, business matters, and real estate law.


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