In California, a probate may be required when there are assets to be distributed. However, an Attorney only files a Probate in certain instances.
AN ATTORNEY WOULD NOT FILE A PROBATE WHEN:
An Attorney would not file a Probate for a person who passes away without any assets. The decedent may not own property such as a house, condo or car and additionally may not have any investments. In short, there would be no need for a Probate when there are no assets to distribute.
In addition, an Attorney would not file a Probate when the decedent had assets and had beneficiaries listed for those assets. This may involve assets such as a bank accounts, investment accounts, life insurance or other financial holdings.
Likewise, an Attorney would not file a Probate when owners of a house or condominium are listed as ‘joint tenants’. In this case, the surviving owner does not require a Probate. Alternatively, the owner(s) may have had a Trust prepared which clearly states beneficiaries. This too would avoid a Probate.
AN ATTORNEY WOULD FILE A PROBATE WHEN:
An Attorney would file a Probate when there are assets to distribute depending on the type and value of the asset. The decedent may have had a Will that states beneficiaries as well as an executor. A Will does not avoid probate. The Will may be valid if typewritten & witnessed by two individuals. It may also be valid if it’s a ‘holographic’ Will which is handwritten and signed. Although a Will does not avoid Probate, it helps in designating an administrator and beneficiaries. The executor in a Will usually becomes the administrator of the Probate if filed in the court.
In California there are different procedures depending on the value of the asset(s). Financial assets such as cash or bank accounts, as well as cars, that are valued under $208,850 (if the decedent passed on or after 4-1-2025) may require a Probate Code Declaration. This is an affidavit which clearly states who should receive the asset.
Real property such as land, mobile home or condo valued under $69,625 (if the decedent passed on or after 4-1-2025) may require a small estate transfer. The attorney will advise as to what is needed.
An attorney, in most cases, will need to file a formal probate when real estate in California is valued at over $750,000 (and the decedent passed on or after 4-1-2025). If the decedent did not have a Trust, was listed solely on the deed (if others were listed, they passed away prior to the decedent) then it is very likely that a formal probate would be needed. This process may take between 9 months and several years depending on the circumstances. In the Probate process, heirs will have the option of selling the property or keeping it. If the heirs decide to keep the home, property taxes may increase. The attorney will advise.
When a family member or close friend passes away in Los Angeles County, give Legal Action Workshop a call. We will answer your questions and take quick action! Call 818-246-0073.
Do I need a formal court ordered probate if trademarks and copyrights are left to one person and stated in the will. Does US Trademark office and copyright office have a procedure for changing ownership?
Brian,
We don’t typically deal with this type of asset. I would suggest finding out the value of the asset and then calling the various offices such as trademark office and copyright office to determine what they need in order to transfer ownership. You could also reach out to a ‘trademark attorney’ who may be able to help. There are various rules for a probate in CA, so it would depend on the value and how the courts would evaluate this type of asset.
Hope this helps!