By Probate Attorney Jim Johnson  | January 3, 2023

What is Probate?

A Guide for Northern California Consumers

Probate is a court-supervised process designed to sort out the transfer of a person's property after they have died. Some property passes automatically to another party upon death. Certain trusts, life insurance policies, and "Totten Trusts" (also called "payable-on-death" accounts) are capable of avoiding probate by making transferring ownership to the beneficiary before death, or automatically upon the creator's death. Other property that is subject to probate will be examined by the court and granted to the appropriate party.

Probate Basics

You may have heard of "probating a will." This refers to the situation where a will is presented to the court that fulfils the legal requirements to be upheld as valid. The court then takes into account the direction of the will and, to the extent that it is not overridden by law, divides the property according to the deceased's wishes.

Probate may be contested or uncontested. In a contested probate there may be a disgruntled party seeking a larger share. In these situations legal and factual arguments are introduced to support or undermine the claims of various parties.

The probate of most estates is uncontested, however. In these cases the property is collected, debts and taxes are paid, disputes are settled, and the remainder of the estate is transferred to the heirs.

Avoiding Probate

Probate is often criticized as being costly and time-consuming. Avoiding probate can ensure that beneficiaries receive their benefits more quickly and that less is lost to administrative and other expenses. As a result many methods have been developed to try to avoid probate.

Joint Property Ownership, Death Beneficiaries, Revocable Living Trusts, and Gifts have all been used to avoid probate. Each of these processes has benefits and drawbacks. After learning the basics it is advisable to research more closely to ensure that you create new problems trying to avoid probate.

Jointly owned property that includes a "right of survivorship" avoids probate because on death the deceased joint owner no longer owns the property, leaving only the surviving owner. Assets that permit you to designate a beneficiary upon death are termed death benefits, and they may also avoid probate. Revocable Living Trusts function similarly to Joint Property Ownership, in that upon death the property automatically transfers to the beneficiary, meaning that it isn't the deceased's property when probate occurs. Finally, making a gift of something before death will also allow the gifted property to avoid probate because the deceased no longer owns the property they gave away.

In addition to these methods probate may be avoided through the use of a probate exemption. Exemptions allow for the avoidance of probate or a simplified probate process for smaller estates. In some states probate is eliminated or simplified for property left to the surviving spouse.