Most people facing this question have just lost a parent, a spouse or another relative, and have learned that a house, an account or a share of something may now be theirs. Before anyone can decide what to do with it, someone has to find out whether a court proceeding stands between the family and the property. Relatives are often asking the same question at once, and the answer turns on a few documents that may still be sitting in a drawer.
This page explains what probate is, why the way title was held matters more than the will, the kinds of ownership that usually skip probate, the property that usually needs probate, and where California's simplified procedures fit in.
The Short Answer: It Depends on How the Property Was Held
Probate is the court-supervised process in which a deceased person's assets are gathered, debts are paid, and what remains is transferred to the people entitled to it. In California the process is governed by the Probate Code and handled by the Superior Court, generally in the county where the person lived, or, for someone who lived outside California, a county where their California real property sits.
Every asset falls into one of two groups:
- A probate asset is property that has no built-in way to pass to someone else at death, so a court has to move it.
- A non-probate asset is property that already carries its own instructions, such as a survivorship right on a deed, a payable-on-death name on a bank account, or ownership by a trust.
Non-probate assets pass by those instructions; probate assets generally do not move until a court or a simplified procedure moves them.
Why the Will Does Not Decide the Question
The question is not whether the person left a will. A will is a probate document: it tells the court who should receive the property, but it does not transfer anything by itself. California law treats the will as something the court acts on. Whoever has the original will generally has to deliver it to the clerk of the Superior Court within 30 days after learning of the death, unless a petition to probate the will is filed earlier, and send a copy to the named executor or, if that person cannot be found, to a named beneficiary (Probate Code section 8200).
The family's first task, then, is to sort each asset into the right group. That depends on how title was held, which the documents themselves show.
What Types of Inherited Property Usually Skip Probate in California
Five kinds of ownership usually move property without a probate case.
Community property with right of survivorship. Spouses or registered domestic partners can hold title this way, and the survivor receives the property when the first partner dies.
Joint tenancy with right of survivorship. The California Courts describe joint tenancy as ownership in equal shares in which, if one owner dies, the property passes to the other (California Courts, Inventory and estimate property value). For a house, the survivor typically records an affidavit of death of joint tenant with the county recorder to clear the title.
A revocable living trust. Property titled in the trust passes to the trust's beneficiaries under its terms, handled by the successor trustee, the person the trust names to take over its management, without court supervision. When a revocable trust becomes irrevocable because of a death, the trustee generally has to serve a notification on each beneficiary and each heir of the person who died, within 60 days of the death, or within 60 days of learning about a person entitled to it, with the period starting when a new trustee begins serving if the office was vacant (Probate Code section 16061.7).
A recorded transfer on death deed. A deed of this kind names the person who is to receive the real property when the owner dies. Because the deed itself carries that instruction, the property usually passes outside court.
Beneficiary designations. Life insurance, retirement accounts and payable-on-death bank accounts go to the people named on file. Under Probate Code section 5302, sums remaining in a payable-on-death account at the death of the sole party generally belong to the surviving payee, and that designation cannot be changed by will.
What Types of Inherited Property Usually Need Probate
Property held in the deceased person's name alone, with no survivorship right, no trust ownership, no transfer on death deed and no named beneficiary, has no built-in way to pass at death. That property generally needs a probate case, even when a will says exactly who should receive it.
Simplified Procedures for Smaller Estates
Formal probate is not the only route for sole-name property. California also offers simplified procedures for smaller estates, which can move a deceased person's property without a full probate case.
Whether one of these procedures is available depends on two things:
- The type of property involved, since different procedures apply to different kinds of property.
- The amount of property involved, since the procedures are designed for smaller estates.
In practice, this means the same inventory used to sort probate and non-probate assets also shows whether a simplified procedure may fit. Listing each asset, how it was held and what it is worth remains the starting point for every path described on this page.
Talking Through an Inheritance
Working out whether inherited property needs probate often means reading deeds, account records and trust documents side by side, sometimes while several relatives wait for an answer. Silver Lining Estate's team is available to discuss how the property in a particular estate was held and which path may apply.
