Legal Question in Wills and Trusts in California

Re: When is probate court necessary?

If married at the time of his passing, no, your mother will not have to go through Probate. However, at her passing, if the total value of the estate is over $100,000 (this does NOT take deductions for current balance on mortgages, etc.) then I'd STRONGLY RECOMMEND you mother placing the assets into a family trust. This will prevent a Probate at her passing and some pretty high fees.

If you have a moment, I recommend you read a bit about the Probate process on our firm's web site at www.No-Probate.com. If you would like to set up a free consultation, please feel free to contact our office at 626-578-0708.

Regards,

Scott Linden

Re: When is probate court necessary?

Probably not. Assets held in joint tenancy with the right of survivorship automatically become the property of the surviving spouse. The IRA most likely has a beneficiary designation on it and if the beneficiary is your mother, that too will be distributed without the need for probate.

Re: When is probate court necessary?

Generally, probate is not necessary when there is a surviving spouse. If, however, your Dad owned separate property at the time of his death then those assets may need to be probated if they exceed $20,000 in real property or $100,000 in other assets.

If the IRA account does not list your Mom's name as beneficiary, the financial institution may still have a procedure for your Mom to receive the proceeds without probate. Have your Mom contact the financial institution for more information.

Your Mom will also need to file Affidavit of Death of Joint Tenant and record it with the county recorder if they owned a home as joint tenants. A living trust would be wise for your Mom at this juncture to avoid probate upon her death for her assets.

I hope this helps.

Re: When is probate court necessary?

Probate likely isn't required unless your father had separate property assets. Regarding the IRA, check with the custodian (named on the IRA statements) to see how to make the claim for it. An attorney probably isn't needed, but she may need one if the IRA does not have a beneficiary named and is over the $100,000.00 probate limit for California.