Which Assets Must Go Through Probate

Harvey just received devastating news. His mother, despite meticulous planning, passed away without a valid codicil to her Trust. A seemingly minor technical error – failing to sign the codicil in the presence of the required witnesses – has thrown the entire estate into probate, costing his family tens of thousands in legal fees and delaying distribution for over a year. He’s now facing the painful realization that even the best intentions aren’t enough without flawless execution.

What Happens When a Will or Trust Fails?

When a Will or Trust doesn’t meet legal requirements, or is improperly executed, the assets it was meant to govern are subject to probate. Probate is the court-supervised process of validating a Will, paying debts and taxes, and distributing remaining assets to beneficiaries. While not all assets go through probate – and careful planning can minimize the need – understanding which assets do is crucial for effective estate planning. If a Will is invalidated, assets fall under intestacy; however, for deaths on or after April 1, 2025, estates with personal property under $208,850 (per CPC § 13100) may still bypass full probate via affidavit.

Which Assets Typically Avoid Probate?

Fortunately, many common assets are designed to bypass probate entirely. These include:

• Assets with Beneficiary Designations: This is the cornerstone of probate avoidance. Life insurance policies, retirement accounts (401(k), IRA), and payable-on-death (POD) accounts at banks all pass directly to the named beneficiaries, irrespective of what a Will says.
• Jointly Held Property: Property owned with right of survivorship automatically transfers to the surviving owner(s). This applies to real estate, bank accounts, and vehicles.
• Community Property: In California, community property – assets acquired during marriage – generally passes directly to the surviving spouse.
• Living Trusts: Assets titled in the name of a properly funded Revocable Living Trust bypass probate. The trustee simply continues to manage and distribute the assets according to the trust’s terms.

What Assets Are Usually Subject to Probate?

Conversely, certain assets almost always require probate:

• Assets Titled Solely in the Decedent’s Name: This includes bank accounts, brokerage accounts, and personal property (furniture, jewelry, artwork) that don’t have beneficiary designations.
• Real Property (Solely Owned): Real estate held solely in the decedent’s name, without a transfer-on-death deed or trust ownership, goes through probate.
• Business Interests (Sole Proprietorships/Partnerships): The value of a sole proprietorship or partnership interest is subject to probate, potentially triggering complex valuation and transfer issues.
• Tangible Personal Property without Beneficiary Designation: Even smaller items like furniture or collections will be subject to probate if there’s no clear beneficiary designation.

How Does Proper Titling Affect Probate?

The way assets are titled is paramount. A seemingly simple oversight can force assets into probate unnecessarily. For example, a brokerage account titled solely in the decedent’s name, even if a beneficiary is named in the Will, is still a probate asset. Conversely, retitling that same account to reflect ownership by the Trust immediately removes it from probate. As a CPA, I understand the nuances of this—the correct titling impacts not only probate avoidance but also the crucial step-up in basis for capital gains purposes, potentially saving your heirs significant taxes. Proper valuation is critical here as well.

What About Digital Assets?

Digital assets – online accounts, cryptocurrency, digital photos, etc. – present a unique challenge. While California law (CPC § 871) was expanded to grant fiduciaries power over digital accounts effective 2025, you must still grant explicit RUFADAA powers in your Will or Trust to bypass federal privacy blocks. Without this authorization, accessing and managing these assets can be extremely difficult, even for legitimate heirs.

What If There’s a Problem with the Will’s Execution?

Even a properly drafted Will can be invalidated due to execution errors. California Probate Code § 6110(c)(2) states that the court may validate a signature-defective Will if there is ‘clear and convincing evidence’ of the testator’s intent; however, this requires a costly court petition and is not a guaranteed safety net. Similarly, California Probate Code § 6112 stipulates that an ‘interested witness’ (a beneficiary) triggers a legal presumption of duress or fraud. Unless there are two other disinterested witnesses, the beneficiary may lose their gift, taking only what they would have received under intestacy rules. Including a self-proving affidavit (Probate Code § 8220) eliminates the need for witness testimony, streamlining the probate process—but it’s useless if the Will wasn’t properly signed and witnessed to begin with. While California allowed temporary remote witnessing during the pandemic, the law (CPC § 6110) has reverted to requiring strict simultaneous presence; remote signatures are generally invalid for Wills unless they meet the narrow ‘Electronic Will’ standards of AB 298.

After 35+ years of practicing as both an Estate Planning Attorney and a Certified Public Accountant, I’ve seen firsthand how crucial it is to address these details proactively. A well-structured estate plan, coupled with meticulous asset titling, isn’t just about avoiding probate; it’s about protecting your family and ensuring your wishes are carried out efficiently and with minimal stress.

How do probate courts in California evaluate intent when a will is challenged?

In California, a last will and testament operates within a probate system that emphasizes intent, clarity, and procedural compliance. When properly drafted, a will does more than distribute property—it creates legally enforceable instructions that guide courts, fiduciaries, and beneficiaries through administration with fewer disputes and less uncertainty.

• Preparation: Review estate planning regularly.
• Validation: Check legal requirements.
• People: Update personal information.

When a will is drafted with California probate review in mind, it becomes a stabilizing roadmap rather than a source of conflict. Clear intent, proper authority, and compliant execution protect both families and estates.

Resources for Legal Standards & Probate Procedure

• Riverside Local Rules: Riverside Superior Court – Probate Division
  Access the essential “Local Rules” (Title 7) effective January 1, 2026. This includes mandatory usage of the eSubmit Document Submission Portal, current Probate Examiner notes, and specific requirements for remote appearances via the court’s designated platform.
• Attorney Verification: State Bar of California
  The official regulatory body for California attorneys. Use this to verify a lawyer’s “Certified Specialist” status in Estate Planning or to access 2026 guidelines on the ethical handling of Client Trust Accounts (IOLTA).
• Self-Help & Forms: California Courts – Wills, Estates, and Probate
  The Judicial Council’s official portal. It includes the updated 2026 forms for the $208,850 personal property threshold and the $750,000 “Primary Residence” simplified transfer procedure (AB 2016).
• Federal Estate Tax Exemption: IRS Estate Tax Guidelines
  The authoritative federal resource for estate and gift tax filing. It reflects the permanent exemption of $15 million per individual (effective Jan 1, 2026), replacing the previously scheduled Tax Cuts and Jobs Act (TCJA) sunset.