Most people facing this question are an adult child, a surviving spouse or a newly named successor trustee, sitting with a stack of statements and a death certificate and trying to work out which of these things need a court and which do not. Relatives are often waiting on an answer. The rest of this page explains how each kind of transfer works, what the paperwork shows, and where the answer depends on facts only the documents can settle.
What 'Transfers Outside Probate' Actually Means
Probate is the court-supervised process, run by a California Superior Court, that confirms a will is valid (or applies the state's rules of inheritance when there is no will) and oversees how the person's assets are gathered, debts paid and property distributed. The person who died is called the decedent.
Some assets never enter that process. They are governed by a contract, by how title is held, or by a statute, and they pass automatically or by a simple claim. Probate Code section 5000 provides that a provision for a transfer on death in an insurance policy, account agreement, pension or retirement plan, trust, transfer on death deed or similar written instrument is not invalid just because it was not signed like a will.
Two separate ideas are at work here. Some assets are legally outside probate because of their title or designation. Others would be probate assets but may use a simplified procedure because their value is under a statutory limit. A will does not control an asset with a named beneficiary or a survivorship title. The designation or the title governs.
Assets That Pass by Beneficiary Designation
A beneficiary designation is a written instruction, made with the institution that holds the asset, naming who receives it at death. Common examples include:
- Life insurance proceeds paid to a named beneficiary rather than to the estate.
- IRAs, 401(k)s, 403(b)s and pensions with a named beneficiary.
- Annuity contracts with a named beneficiary.
- Bank accounts with a payable-on-death (POD) designation.
- Brokerage and investment accounts with a transfer-on-death (TOD) designation.
For bank accounts, Probate Code section 5302 provides that when the sole party (or the last surviving party) dies, the money belongs to the surviving POD payee or payees, in equal shares unless the account terms say otherwise. The same section provides that a POD designation cannot be changed by will.
In practice, the beneficiary contacts the institution, presents a death certificate and completes its claim form. No court is involved. If the named beneficiary died first and no backup beneficiary was named, the asset may fall into the probate estate. The institution's terms govern that result.
Assets That Pass by How Title Is Held
Joint tenancy with right of survivorship means two or more people own property in equal shares, and when one dies, the survivor takes that share. Civil Code section 683 provides that a joint tenancy is created when a will or transfer expressly declares one, and that a joint tenancy in personal property may be created by a written transfer, instrument or agreement. For real property, the survivor generally clears title by recording an affidavit of death of joint tenant, with a certified death certificate, with the county recorder.
Community property with right of survivorship is a California way of holding title that gives a surviving spouse or domestic partner the same automatic result for community property real estate.
Tenancy in common carries no survivorship right. The decedent's fractional share passes through the estate, either through probate or through a trust if the share was held there. It does not go to the co-owner automatically.
For real property, the recorded deed shows how title is held. For personal property, such as a vehicle, the title document controls, and for an account, the account registration controls. How title is held is a question of fact, and the document itself answers it. A family sorting out a shared house can find more in the guide on inheriting a house in California.
Assets Held in a Revocable Living Trust
A revocable living trust holds title to assets while the person who created it, called the settlor, is alive. When the settlor dies, the successor trustee manages and distributes those assets under the trust's terms, without court supervision. The successor trustee is the person or institution the trust names to carry out its terms after the settlor's death.
The phrase that matters is "properly transferred into the trust." An asset the settlor meant to put in the trust but never retitled stays outside it and may need probate. A pour-over will can direct those leftover assets into the trust. Even so, the asset still goes through probate first, or through a simplified procedure if it qualifies.
One early duty falls on the successor trustee. Under Probate Code section 16061.7, when a revocable trust becomes irrevocable because of a settlor's death, the trustee serves a notification on each beneficiary and on each heir of the deceased settlor. That notification is due no later than 60 days after the death, or 60 days after the trustee learns of a person who was entitled to it but was not known at the time. If the trustee's office was vacant, the 60 days run from the date the new trustee begins to serve. Creating, funding or amending a trust is a separate subject from settling one.
Real Property With a Revocable Transfer on Death Deed
A revocable transfer on death deed, sometimes called an RTOD or TOD deed, names a beneficiary who takes the owner's California real property at the owner's death. The owner could revoke it at any time before death, and the beneficiary has no rights until the owner dies.
Probate Code section 5600 applies these rules to a transferor who dies on or after January 1, 2016. That part of the code is set to be repealed on January 1, 2032, unless a later statute extends it, and the repeal does not affect a deed signed before that date.
Under Probate Code section 5652, the property goes to a beneficiary who survives the owner. A beneficiary who does not survive the owner loses the share. Two or more beneficiaries take as tenants in common, in equal shares, and a share that fails goes to the others. The property also stays subject to recorded liens, leases and easements, and it transfers without a warranty of title.
At death, the beneficiary records an affidavit with a certified death certificate with the county recorder. No court proceeding is required. Real property in another state is governed by that state's law.
California's Simplified Procedures for Smaller Estates
California law offers shorter routes when the probate assets fall below limits set by statute and adjusted over time. The California Courts self-help guide to simple transfers states that these amounts are updated every 3 years and that the limit depends on the date of death and the kind of property. The current figures are published there. The procedures, in the Judicial Council's terms, are:
- Affidavit for collection or transfer of personal property. Under Probate Code section 13100, once 40 days have passed since the death, the successor may collect money owed to the decedent, receive tangible personal property and have securities or debts transferred without letters from the court. This applies only if the gross value of the decedent's California real and personal property is within the limit. Probate Code section 13050 excludes certain property from that calculation, including joint tenancy property, revocable trust property, multiple-party accounts that belong to a survivor or POD payee, and registered vehicles.
- Petition to determine succession to the decedent's primary residence. This covers the decedent's main home in California.
- Affidavit for real property of small value. This covers other real property under its own limit.
- Spousal or domestic partner property petition. Probate Code section 13500 provides that property passing to a surviving spouse under a will or by intestacy generally needs no administration. Under Probate Code section 13650, the surviving spouse may petition the superior court for an order saying so, and may also ask the court to confirm property that already belongs to the survivor. The Judicial Council's Spousal or Domestic Partner Property Petition (DE-221) is the form for that request.
When an Asset Still Requires Full Probate
Full probate usually remains when an asset is titled in the decedent's name alone, has no beneficiary designation, no survivorship title and no trust, and is worth more than the applicable simplified-procedure limit. In that case the court appoints an executor (the person a will names to manage the estate) or an administrator (the person appointed when there is no executor). Probate Code section 8461 sets the order of priority for administrator. It begins with the surviving spouse or domestic partner, then children, then grandchildren, and the list continues through more distant relatives, creditors and others.
A will that has not been admitted to probate does not transfer title. It is a direction to the court. Probate Code section 8200 provides that, unless a probate petition is filed first, whoever holds the will delivers it to the superior court clerk within 30 days after learning of the death, and delivers a copy to the named executor. Real property in another state is subject to that state's law, and a separate probate may be needed there.
Disputes among heirs, a trustee or an executor, or suspected misconduct, are a different subject, handled by an attorney who litigates trust and probate cases. The broader sequence is laid out in the California estate settlement guide.
What to Check Before Assuming an Asset Avoids Probate
It helps to sit with each asset and ask the same few questions. None of this has to happen in one sitting.
- How is title held? The deed, account registration or certificate states it.
- Is there a named beneficiary who is still living? The institution holding the account or policy can confirm it.
- Was the asset transferred into a trust during the owner's lifetime? The trust's schedule of assets and the title document both show it.
- Is the asset's value within a simplified-procedure limit? The California Courts self-help guide lists the current figure by date of death.
The California Courts self-help guide to inventory and property value says that deeds are public records available at the County Recorder's Office in the county where the property sits. It also says bank accounts are private, and a personal representative must be appointed to gain access to those records. The estate settlement checklist puts these steps in order.
A CPA, an enrolled agent or a tax attorney reviews income-tax and basis questions. The county assessor's office handles property-tax reassessment and exclusion claims.
