Do I need Probate? And is it to late to appointe an adinistrator/executor….

UPDATED: May 14, 2009

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Do I need Probate? And is it to late to appointe an adinistrator/executor….

My mom past away in 2006, I just received papers about a life insurance policy she(mom) had on dad(which is also deceased). They are asking me for TIN # for the estate and also certifed estate papers for my mom, how ever i didn’t know i had to go through probate. Because me and my siblings just splitted everything evenly. I also would like to know, If a person pass away and has a Retirement account with no beneficiary what happens to that money..

Asked on May 14, 2009 under Estate Planning, California


MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

Well, all of the issues you just described either need to go through probate or actually can bypass if proper beneficiaries or joint account holders are named.  Before you do anything with probate, immediately contact a probate/estate planning attorney in California and talk to him or her with all the questions you have.

Try and then check his or her disciplinary record at under attorney search. 

Also, review the following:

What types of property don’t have to go through probate, and what types do?

Some process is needed to transfer legal title from the deceased’s own name to his or her Beneficiaries or heirs. Property that does not need to go through probate to transfer legal title includes property that passes automatically to someone else at the death of the deceased or that didn’t actually belong to the deceased at the time of death. Property that passes directly to others includes the following:

Real property (such as land and buildings) and personal property (such as bank accounts, vehicles, jewelry, and so on) owned as joint tenants passes to the surviving co-owners by operation of law without going through probate.

Benefits payable to named Beneficiaries, such as those from a life insurance policy or annuitybypass probate. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically, outside probate, to the persons named as Beneficiaries. Bank accounts that are set up as payable-on-death accounts (POD for short) (also called an "in trust for" account or a "Totten Trust") with a named Beneficiary also pass to that Beneficiary without probate.

Assets that are put into some kind of a Trust while the deceased is still alive belong to the Trust, and not to the deceased at the time of death. Because of this, those assets are not included in the estate that has to go through probate. The most common form of Trust used to remove property from probate is a revocable Living Trust. It’s called “revocable” because it can be cancelled as long as the person setting it up is still alive and competent to make decisions. The Trust is a legal entity that survives the person who created it. After the person setting up the Trust (the Settelor) dies, the Trustee will distribute the assets of the Trust to the Beneficiaries named in the Trust documents without going through probate or being supervised by a court (and usually without making the Trust provisions public).

The property that goes though probate, or that is included in the probate estate, is any other property the deceased owned at the time of his or her death or that is payable to the estate. For example, if a house, car, RV, and bank account are all in the name of the deceased at the time of death, those items of property will have to be included in the probate estate and go through the probate procedure before they can be legally transferred to the Beneficiaries. If the estate of the deceased is named as the Beneficiary of an insurance policy, the proceeds of the policy will be included in the probate estate. Salary and benefits due to the deceased and money collected from debts owned to the deceased are part of the probate estate as well.

There are other exceptions to what is included in a probate estate that are set by state laws. Most states allow a limited amount of property to pass to certain Beneficiaries free of probate or through a simplified probate procedure. Some states, for example, exclude property that is owned as community property by spouses or that one spouse or domestic partner leaves to the other spouse or partner in a Will from probate. You always have to look to state law to find out your state’s probate requirements, and you might want to consult with a probate attorney in your state if there is any doubt about what assets must be included in a probate estate.


IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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