Author: San Jose Living Trust

Having a will does not automatically mean probate is required. But it also doesn’t mean probate is off the table. The answer depends on what assets the deceased owned, how those assets were titled, and whether California’s specific rules require court involvement.

If you’re trying to figure out whether a will has to go through probate — or whether you can avoid it — this page walks through how California law actually works.

What Probate Is and What It Actually Does

Probate is the court-supervised process of validating a will, paying the deceased’s debts, and distributing what remains to the beneficiaries named in the will. A California probate case is filed in the Superior Court of the county where the decedent lived, is a matter of public record, and can take anywhere from nine months to several years to complete.

The process exists to protect creditors and heirs. The court confirms the will is legitimate, oversees the executor’s work, and ensures assets reach the right people in the right amounts.

That protection comes at a cost. California sets statutory attorney and executor fees as a percentage of the gross estate value, not the net. On a $1 million estate, those fees can easily exceed $46,000 before any contested issues arise. For San Jose families in the 95119 area, where real estate alone can push an estate into seven figures, the cost of full probate is a number worth planning around.

Why Having a Will Doesn’t Automatically Skip Probate

This is the most common misconception estate planning attorneys encounter. A will is a legal instruction, not a transfer mechanism. It tells the court what you want done. The court still has to supervise the doing.

So does a will avoid probate? No. A will goes into probate, not around it.

What actually bypasses probate is not the will itself but how individual assets are owned or titled at the time of death. A person can leave behind a carefully written will and still have every asset pass directly to beneficiaries without a single court hearing, if those assets were set up correctly in advance.

Conversely, someone can have a detailed, valid will and still put their entire estate through probate, because the will didn’t change how the assets were titled.

The will governs probate assets. Non-probate assets are governed by contract, title, and beneficiary designations that exist outside the will entirely.

The Assets That Bypass Probate Regardless of What the Will Says

Several categories of assets pass directly to a named recipient at death, no court involvement required.

Accounts with beneficiary designations. Life insurance policies, IRAs, 401(k)s, and pension plans each have a beneficiary designation on file with the financial institution or plan administrator. Under Cal. Probate Code § 5000, written instruments that provide for transfer of assets to a designated beneficiary upon death are valid and operate independently of a will. When the account holder dies, those assets go directly to the named beneficiary. The will has no authority over them.

The same applies to bank or investment accounts set up with a payable-on-death (POD) or transfer-on-death (TOD) designation. These accounts pass outside the estate entirely.

Jointly owned property with survivorship rights. California recognizes two forms of co-ownership that transfer property automatically at death. Joint tenancy with right of survivorship means the surviving co-owner inherits the deceased’s share without probate. Married couples have a second option: under Cal. Civ. Code § 682.1, community property held with an express right of survivorship passes to the surviving spouse at death without court involvement, provided the survivorship was declared in the transfer document and accepted by both spouses. This applies to instruments created on or after July 1, 2001.

Assets held in a funded living trust. Property transferred into a revocable living trust during the grantor’s lifetime is owned by the trust, not the individual. When the grantor dies, the successor trustee distributes those assets according to the trust’s terms, privately and without court supervision. The will has no jurisdiction over trust assets.

What Does Go Through Probate

Assets that remain solely in the decedent’s name at death, with no beneficiary designation, no survivorship arrangement, and no trust ownership, are probate assets. Common examples for California residents include:

• Real estate held only in the deceased’s name
• Individual bank or investment accounts with no POD or TOD designation
• Personal property, vehicles, and valuables held solely by the decedent
• Business interests not held in a trust or with a succession agreement

If these assets total more than California’s small estate threshold, a formal probate proceeding is required to transfer them, even when a valid will exists naming the intended recipients.

California’s Mandatory Will Filing Requirement

Here is a point many California residents are surprised to learn. Even when full probate is not required, California law requires that the original will of a deceased person be filed with the Superior Court in the county where they lived. This is not optional.

The filing requirement exists regardless of whether the estate needs probate or whether the assets pass through other mechanisms. If you are in possession of an original will and the person has died, you are legally required to file it with the court. Failing to do so carries legal consequences.

Filing a will with the court is not the same as opening a probate case. It is simply a legal record. But it must be done.

California’s Small Estate Procedures: A Streamlined Path

If the estate’s value falls below California’s threshold, full probate may not be required at all, even for assets held solely in the decedent’s name.

Small estate affidavit for personal property. Under Cal. Prob. Code § 13100, if the total value of the estate’s personal property is below the current threshold (as of 2024, estates of $184,500 or less) and at least 40 days have passed since the death, an heir can use a sworn affidavit to claim personal property directly from the holder, such as a bank, without opening a probate case. The claimant signs the affidavit and presents it to whoever holds the property.

Simplified court process for a primary residence. Under Cal. Prob. Code § 13150, California also provides a simplified court procedure to transfer ownership of a decedent’s primary home when its value falls below a specified limit. This is a court process, but a much shorter one than full probate.

Both procedures serve the same purpose: giving families a practical path forward when the estate is modest, without the full burden of a formal probate case. Under Cal. Prob. Code § 6602, California periodically adjusts these limits to account for inflation, so the current threshold should be confirmed with an attorney before relying on it.

Can You Avoid Probate With a Will? The Planning Answer.

Can you avoid probate with a will? The honest answer is that a will alone cannot avoid probate. But proactive planning can.

The strategies that actually work are built around how assets are owned before death, not what a will says after it.

Beneficiary designations. Review and update the beneficiary designations on every retirement account, life insurance policy, and financial account. These designations override the will and control how those assets transfer. An outdated designation naming an ex-spouse or a deceased parent can cause real problems.

Revocable living trust. A revocable living trust is the most comprehensive probate-avoidance tool available in California. The grantor transfers assets into the trust during their lifetime and retains full control of them. Under Cal. Probate Code § 15401, a revocable trust can be changed or revoked at any time during the grantor’s life. At death, the successor trustee distributes assets according to the trust document, privately, without court involvement. The key word is “funded.” A trust that exists on paper but holds no assets accomplishes nothing. Every asset meant to avoid probate must be formally transferred into the trust.

Community property with right of survivorship. For married couples, titling real property under Cal. Civ. Code § 682.1 as community property with right of survivorship means the surviving spouse receives the property automatically, without probate, and with a favorable stepped-up tax basis on both halves of the property.

None of these strategies are set-once-and-forget. A beneficiary designation filled out 20 years ago may not reflect your current family situation. An estate plan that made sense when your children were young may need adjusting now that they are adults. Regular review is part of making the plan work.

Understanding Probate Challenges and Contests

A will admitted to probate can be challenged. Under Cal. Prob. Code § 8270, any interested person can petition to revoke a will’s admission to probate within 120 days of the will being accepted. Grounds for a challenge can include forgery, lack of capacity, or undue influence, the same concepts defined in the no-contest framework under Cal. Probate Code § 21310.

These challenges are one reason proper estate planning matters. Assets that pass through beneficiary designations or a funded trust are not part of the probated estate and are generally not subject to the same challenge process.

Talk to a California Estate Planning Attorney

The question of whether a will has to go through probate does not have a one-size answer. It depends on the specific assets, how they are titled, the total estate value, and how California’s procedural rules apply to your family’s situation. The cost of getting it wrong, either by assuming probate isn’t needed when it is, or by leaving assets in a will when they could pass outside probate entirely, falls on the people you’re trying to protect.

Our attorneys are licensed in California and work with families in San Jose, Santa Clara County, and the surrounding areas to build estate plans that account for how California law actually works, from the mandatory will filing requirement to trust funding to small estate procedures.

Schedule a consultation to review your situation and understand your options before a court gets involved.

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This content is for informational purposes only and does not constitute legal advice. California probate and estate planning law is fact-specific and changes over time. Consult a licensed California estate planning attorney for guidance on your particular situation.

In most cases, no. An account with a valid, up-to-date beneficiary designation passes directly to that person when the owner dies, without a Santa Clara County probate case. This applies to payable-on-death bank accounts, transfer-on-death brokerage accounts, retirement accounts, and life insurance policies. The exceptions come up more often than families expect, and they’re worth understanding before you assume your accounts are fully covered.

This article is for Santa Clara County families who want to know exactly which accounts avoid probate on their own, and which ones only look safe on paper.

What “Payable-on-Death” and “Transfer-on-Death” Actually Mean

A beneficiary designation is a form you fill out with a bank, brokerage, or insurance company that names who should receive the account when you die. It works separately from your will. Under California’s Multiple-Party Accounts law, a bank account with this designation is commonly called a payable-on-death, or POD, account. The equivalent for brokerage accounts and securities is called transfer-on-death, or TOD, under the Uniform TOD Security Registration Act (California Probate Code Section 5500 and following).

While you’re alive, the designation gives your named beneficiary no rights at all. You keep full control of the money; you can spend it, close the account, or change the beneficiary at any time. The designation takes effect only at your death, and the funds go straight to the named person once they present a death certificate and identification. No court order is required.

Which Accounts Can Skip Probate With a Beneficiary Designation

Several common account types in California allow a named beneficiary to bypass the probate process entirely.

Bank and Credit Union Accounts

Checking accounts, savings accounts, and certificates of deposit can carry a POD designation under California Probate Code Section 5302. The bank pays the named beneficiary directly once notified of the death.

Brokerage and Investment Accounts

Stocks, bonds, and mutual fund accounts held at a brokerage can be registered in TOD form. The securities transfer to the named beneficiary without going through the account owner’s estate.

Retirement Accounts

IRAs, 401(k)s, and similar retirement plans are governed by the beneficiary form on file with the plan administrator, not by a will. This is one of the most common estate planning mistakes we see: someone updates their will after a divorce but forgets the retirement account still lists an ex-spouse.

Life Insurance Policies

Life insurance proceeds go directly to whoever is named on the policy, regardless of what a will says. A policy can name multiple beneficiaries with specific percentage splits, and a contingent beneficiary in case the primary beneficiary doesn’t survive the policyholder.

Vehicles and Real Property

California also allows a transfer-on-death designation on a vehicle title (Vehicle Code Section 4150.7) and, for certain residential real property, a Revocable Transfer on Death Deed under Probate Code Sections 5600 through 5698. Both have strict formality requirements, so an improperly completed form can fail at the exact moment it’s needed.

When a Beneficiary Designation Won’t Keep an Account Out of Probate

A beneficiary form is only as good as the details on it. Here’s where families run into trouble.

No Beneficiary Named, or the Beneficiary Has Already Died

If an account has no POD or TOD designation, or the named beneficiary died before the account owner and no contingent beneficiary was listed, the account becomes part of the probate estate. It’s treated the same as an account titled in the deceased person’s name alone.

The Beneficiary Is Listed as “My Estate”

Naming your own estate as beneficiary defeats the purpose of the designation. Instead of passing directly to a person, the funds flow back into probate, where they’re distributed under the will or under California’s intestate succession rules if there isn’t one.

Outdated Designations After a Divorce, Remarriage, or a New Child

Beneficiary forms don’t update themselves. A retirement account or life insurance policy can still list a former spouse years after a divorce, and in most cases the designation controls over what a later will or living trust says. This is one of the more painful surprises families encounter during trust administration, and it’s entirely preventable with a periodic review.

Does a Will Override a Beneficiary Designation?

No. A beneficiary designation is a contract between the account owner and the financial institution, and it generally controls regardless of instructions in a will or even a trust. If your will says your daughter should receive a certain bank account, but the POD form still names your brother, the bank pays your brother. This is exactly why beneficiary forms need to be reviewed alongside your will and trust, not treated as a one-time task.

Why Beneficiary Designations Alone Aren’t a Full Plan

Beneficiary designations are a useful, no-cost tool, but they weren’t built to coordinate an entire estate. A few gaps show up regularly for Santa Clara County families:

They don’t cover incapacity. A POD or TOD designation only activates at death. If you become incapacitated while alive, your named beneficiary has no authority to manage the account. A living trust or durable power of attorney addresses that gap directly.

They can conflict with each other. A married couple with children from prior relationships often needs beneficiary designations, a will, and a trust to work together intentionally, not by accident of which form was filled out last. This comes up frequently for blended families in the South Bay.

They can’t include conditions. A beneficiary designation pays a lump sum to an adult beneficiary with no strings attached. If you want funds to be managed for a minor child, or protected for a beneficiary receiving government benefits, a special needs trust or trust-based plan is built for that; a beneficiary form is not.

They don’t address real property equity. Beneficiary designations work well for financial accounts, but most Santa Clara County estates carry significant value in home equity, which typically needs a living trust or a properly executed TOD deed to avoid the formal probate process.

How to Check and Update Your Beneficiary Designations

A short review now can prevent a costly court case later. Set aside time to:

1. Pull the beneficiary form for every bank account, brokerage account, retirement plan, and life insurance policy you hold.
2. Confirm a primary beneficiary and a contingent beneficiary are both named on each.
3. Compare each name against your current family situation, especially after any divorce, remarriage, birth, or death.
4. Make sure no account lists “my estate” as the beneficiary.
5. Bring the list to your estate planning attorney so it can be coordinated with your will and trust, rather than reviewed in isolation.

Frequently Asked Questions

Do payable-on-death accounts go through probate in California?

No. A properly completed POD designation lets the named beneficiary claim the funds directly from the bank with a death certificate and identification, without a probate case.

What happens if a beneficiary on an account has died?

If no contingent beneficiary was named, the account is treated as if there were no beneficiary designation at all, and it becomes part of the probate estate.

Can a will change who receives a payable-on-death account?

Generally no. The beneficiary designation on file with the bank or brokerage controls, even if a later will names someone different for that same account.

Is a beneficiary designation enough, or do I still need a trust?

For many Santa Clara County families, both. Beneficiary designations work well for individual financial accounts, but a trust coordinates the full estate, addresses incapacity, and can protect assets for minor or vulnerable beneficiaries in ways a beneficiary form can’t.

Getting Started

Accounts with a current, properly named beneficiary generally avoid probate in California, but “generally” is doing a lot of work in that sentence. A missing contingent beneficiary, an outdated form from before a divorce, or a mismatch between your will and your account paperwork can send an asset straight into the Santa Clara County probate process you were trying to avoid.

If it’s been a while since you’ve reviewed your beneficiary forms, schedule a Life & Legacy Planning Session with Marsala Law Firm. We’ll look at your accounts, your will, and your trust together, so nothing is left to a form you filled out years ago.