When Is It Necessary to File for Probate?

When Is It Necessary to File for Probate?

Updated on July 16, 2021

When is it Necessary to Apply for Probate

Probate is a court supervised administration of a decedent’s estate which gives the Court jurisdiction over the decedent’s property in the state. It determines the distribution of assets. Traditionally, probate referred to the narrow process of proving a decedent’s will before the court. However, probate now encompasses the entire process of court-supervised estate administration, regardless of whether a decedent died with or without a will.

How Probate Proceed?

Probate proceedings are initiated by filing a petition for appointment of a personal representative and, in situations where there is a will, for probate of the decedent’s will. Any interested person may petition the court for appointment of a personal representative or probate of decedent’s will, or both. The petitioner need to necessarily be a named executor or eligible administrator. An interested person is defined as anyone having an interest in the estate that may be affected by the probate proceeding.

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When is it Necessary to File for Probate?

Whether probate administration is necessary varies depending on a variety of factors, e.g. the form in which decedent held title to the property, decedent’s marital status, and the nature and value of decedent’s property (both real and personal).

Not All Property is subject to Probate

First, not all property is subject to probate. Judicial proceeding is required only for property and property interests that the decedent owned directly at death. Property owned indirectly or that passes by operation of law are not subject to probate. For example, property held in a living trust or in a joint tenancy are not subject to probate.

Decedent is Survived by a Spouse

Second, if a decedent is survived by a spouse or registered domestic partner, it may be possible to avoid probate in whole or in part. This depends on whether the property will pass outright to the surviving spouse or if the surviving spouse elects to probate.

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Value of the Estate

Third, depending on the value of the estate, certain estates may be exempt from probate or be entitled to summary administration. For example, estates worth $150,000 or less can be disposed of by affidavit. Transfer of California real property not exceeding $50,000 in value can also be disposed of by affidavit instead of full probate proceedings.

Not sure whether or not you should you file for probate? Schorr Law has experience with resolving probate issues related to probate of real property, and probate litigation attorney in Los Angeles can help you determine whether or not you should file for it. To see if you qualify for a free 30-minute consultation regarding your probate matter, please contact real estate lawyer in California by phone, email, or send us a message through our contact form.