Navigating the probate process in California can be intimidating, especially when you’re dealing with the emotional aftermath of a loved one’s passing. My experience in Los Angeles real estate has shown me just how often misunderstandings about probate lead to unnecessary stress and costly delays. Let’s break down some of the most common probate myths and what you really need to know to protect yourself and your property.
Why Probate Gets Complicated
Probate cases can involve more than just settling a will—they often bring up tangled ownership issues, out-of-state corporations, and disputes among heirs. One of the more complex situations I’ve encountered involved two investors who purchased a property through questionable methods during the financial crisis. When one died without heirs and the other had a family, unraveling the ownership turned into a legal maze. The process required partition by sale, which is often the fairest way to resolve shared ownership of a property when no agreement can be reached.
A partition by sale allows the court to appoint a real estate agent (known as a commissioner) to sell the property and divide the proceeds. This avoids the impractical alternative of trying to physically divide a single-family home. Partial ownership interests—especially those tied up in LLCs or corporations—further complicate matters, making professional guidance critical.
Top Probate Myths Debunked
Let’s clear up a few major misunderstandings that come up again and again:
Myth #1: A Will Avoids Probate
False. Having a will doesn’t mean you can skip probate. A will still needs to be submitted to the court to be validated and executed.
Myth #2: You Must Probate Every Will
Not necessarily. If all assets are jointly owned or have designated beneficiaries (such as through right of survivorship or transfer-on-death clauses), then the will might not need to be probated at all. These types of assets bypass the probate process entirely.
Myth #3: Probate Only Applies to Real Estate
While real estate is a common factor, probate can also involve bank accounts, business interests, and personal property. Anything that was solely in the deceased person’s name without a beneficiary designation is fair game for probate.
Myth #4: You Can Sell a Half-Owned Property Like Any Other Property
Selling a partial interest in a home is rarely practical. Buyers generally want full ownership. That’s why partition by sale is the preferred option when heirs or business partners can’t agree.
Myth #5: Probate Isn’t Needed If the Estate Is Small
In California, estates under a certain threshold ($184,500 as of 2024) may qualify for a simplified process. But even small estates can run into snags without proper planning.
What Happens When There’s No Will?
If someone dies without a will (intestate), state laws decide who inherits the estate. A personal representative will be appointed to manage the process, including:
- Filing a petition with the court
- Locating and valuing assets
- Notifying creditors
- Paying debts and taxes
- Distributing the remaining property to heirs
Without proper planning, family members can face long delays, court battles, or even lose property due to confusion and lack of documentation. Probate isn’t just about legality—it’s about avoiding unnecessary heartache.
Key Takeaways
- A will does not avoid probate—it needs court approval to take effect.
- Joint ownership and designated beneficiaries can bypass probate.
- Selling part of a property is rarely viable; partition by sale is often necessary.
- Probate applies to more than just real estate.
- Proper estate planning is essential to avoid confusion and delays.
🗣️Notable Quotes:
“Probate isn’t the problem—lack of planning is.”
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DISCLAIMER: The Probate Realtor® Matias Baker Masucci is a licensed real estate broker in California DRE # 02054763. Any legal information provided is for informational purposes only and NOT for the purpose of providing legal advice. Contact an attorney to obtain advice with respect to any particular legal issue or problem. We make no guarantees as to the accuracy of any information.
