How you know what property must go through probate?
You must do a probate if someone dies and you need their signature to transfer property. What Probate really does is get you a court order that substitutes for that person’s signature.
The Most Common Example of Property to go through Probate is a House.
Easily the most common example of property that goes through probate would be a house. If your mom owned her house and she held title in her name and passed away she could not sign the deed to sell the house. As an example, Joan Smith owned her house and she passes away, Joan Smith isn’t there to sign a deed to sell the house to somebody else. You need a probate court order that allows you to transfer title of the house from the probate estate to somebody else.
Not Just Real Estate
Of course it’s not just real estate that goes through probate. Other assets like bank accounts, brokerage accounts, and in some cases even IRA’s and retirement plans can have to go through probate also. Any kind of property at all can possibly go through probate.
Here is how you know if property needs to go through probate:
If title is in the name of the person who died alone, then the property whether real estate or personal property, has some kind of title and must go through probate. That means there’s an account name, a deed, or something like it, and you need the persons signature to transfer the property.
On the other hand, if that person held title jointly, so if there’s a joint tenancy for reals estate, bank accounts, brokerage accounts, or whatever property, then probate is not needed for that property. When the person dies whoever else is the joint tenant on the account, they will be the sole owner without passing through probate.
It’s the same thing if there’s a designated beneficiary, so if Joan Smith dies and she’s filled out a designated beneficiary form with her bank, let’s say and that beneficiary form says that the saving account goes to my daughter and the checking account goes to my son. Because they are the designated beneficiaries of each of those accounts, then those accounts pass outside of probate.
So, the take away from all of this is that if it’s in one person’s name and there’s no designated beneficiary, if there’s nothing writing that says it goes to somebody else, that property is going through probate
AttorneyThe Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307