Key Takeaways
- Whether an asset goes through probate turns on how it’s titled and whether it has a named beneficiary — not just its value.
- Probate assets: property in the deceased person’s name alone, with no beneficiary and no survivorship feature.
- Non-probate assets: living-trust property, joint-tenancy property, and accounts or policies with a named beneficiary — these pass outside probate.
- Even probate-eligible estates can use simplified procedures if they fall under California’s statutory thresholds.
- Knowing which bucket each asset falls into tells you whether probate is needed at all.
The Question That Determines Everything
When someone dies, the first practical question is: does this estate even need probate? The answer rarely depends on how much the person owned. It depends on how each asset was titled and whether it named a beneficiary.
Two people can die owning a million dollars and have completely different outcomes — one estate sails through with no probate at all, the other lands in court for a year — purely because of how the assets were held. Understanding the distinction is the key to knowing what you’re dealing with.
Assets sort into two buckets: those that must go through probate, and those that pass outside it automatically.
Assets That Pass Outside Probate
These assets have a built-in way to transfer at death, so probate isn’t needed for them:
- Living-trust property. Anything titled in a revocable living trust passes under the trustee’s management to the beneficiaries — no court involvement. This is the most comprehensive non-probate tool.
- Joint-tenancy property. Property held in joint tenancy with right of survivorship passes automatically to the surviving owner. Many couples hold their home this way.
- Community property with right of survivorship. A common form of title for married couples, passing to the survivor automatically.
- Beneficiary-designated accounts. Life insurance, IRAs, 401(k)s, and other retirement accounts pass to the named beneficiary directly.
- Payable-on-death and transfer-on-death accounts. Bank and brokerage accounts with a POD or TOD designation pass to the named person.
- Real property with a transfer-on-death deed. California allows a TOD deed for certain residential property, naming who inherits without probate (subject to eligibility rules and a statutory expiration date).
The common thread: each of these already “knows” where it’s going when the owner dies, so there’s nothing for a probate court to decide.
Assets That Typically Go Through Probate
What’s left for probate is property held in the deceased person’s name alone, with no beneficiary designation and no survivorship feature:
- A house or other real estate titled solely in the deceased person’s name (no trust, no joint owner, no TOD deed)
- A bank or brokerage account in the person’s name alone with no POD/TOD beneficiary
- Vehicles, personal belongings, and business interests held individually
- Any asset whose named beneficiary has died, leaving no valid designation
These are the assets that have nowhere to go without a court granting someone authority to transfer them — which is exactly what probate does.
Trying to figure out whether an estate needs probate at all? A quick review of how the assets are titled usually answers it. Bay Legal can help. For guidance on your specific situation, call (650) 668-8000 or schedule a consultation at baylegal.com/contact.
Size Still Matters: The Simplified-Procedure Thresholds
Even when an estate contains probate-eligible assets, it may not need full probate. California offers simplified procedures for smaller estates:
- Personal property under the small-estate threshold — $208,850 for deaths on or after April 1, 2025 — can transfer by small-estate affidavit without opening probate.
- A modest primary residence and other property can transfer through a petition to determine succession under a separate, higher threshold (in the range set by recent legislation — confirm the current figure).
- Real property of small value under a lower threshold can use its own affidavit procedure.
- A surviving spouse can use a spousal property petition regardless of value.
These thresholds are adjusted on a set schedule, so confirm the current numbers before relying on them. The point: an estate can be probate-eligible by asset type yet still qualify for a faster, cheaper path because of its size.
Putting It Together: A Simple Test
To gauge whether an estate needs probate, run through each significant asset and ask:
- Is it in a trust? → No probate.
- Does it have a surviving joint owner? → No probate.
- Does it name a living beneficiary (or have a POD/TOD)? → No probate.
- Is it in the person’s name alone with none of the above? → Probate-eligible — then check whether the estate is small enough for a simplified procedure.
If everything lands in the first three categories, the estate may avoid probate entirely. If significant assets land in the fourth, some form of probate — full or simplified — is likely needed.
The title test is simple in theory but easy to get wrong in practice — especially with real estate and older accounts. For guidance on your specific situation, call (650) 668-8000 or schedule a consultation at baylegal.com/contact.
Planning Ahead
Everything above describes how things stand after a death. Before then, you have control: retitling assets into a living trust, keeping beneficiary designations current, and using tools like a transfer-on-death deed can move assets from the probate bucket to the non-probate bucket. That’s the heart of how to avoid probate in California.
Frequently Asked Questions
Does a house automatically go through probate in California?
Not necessarily. A house in a living trust, held in joint tenancy, or covered by a transfer-on-death deed passes outside probate. A house in the deceased person’s name alone, with none of those, is probate-eligible.
What assets are exempt from probate in California?
Living-trust property, joint-tenancy and survivorship property, and assets with a named beneficiary (life insurance, retirement accounts, POD/TOD accounts) generally pass outside probate.
Do bank accounts go through probate in California?
A solo account with no payable-on-death beneficiary generally does. An account that’s jointly held or has a POD beneficiary passes outside probate.
What is the probate threshold in California?
Estates of personal property under $208,850 (for deaths on or after April 1, 2025) can use a small-estate affidavit. Higher thresholds apply to certain real-property procedures. The figures are adjusted periodically.
Do retirement accounts go through probate?
Generally no, as long as a living beneficiary is named. If no valid beneficiary is named, the account can fall into the probate estate.
