Probate Court

• If a person dies with or without a will (as opposed to dying with a trust) the family must petition the probate court to handle some of the aspects of administering the decedent's estate. The probate process typically involves paying off priority debts (such as funeral expenses and medical costs) and distributing any probate property. It may not always be necessary. For example, according to Nolo.com, California law allows an estate valued at $100,000 or less to pass without the need of probate. The property that is controlled by the probate court is known as the decedent's probate estate.
  
  

Probate Assets

• Probate assets are generally any property owned by the decedent that was not placed out of probate (such as by placing it into a trust) or property that passes by operation of law. If the decedent wrote a will, the gifts he made in that will are generally probate assets. If a will contained language such as "I give my collection of comic books to my cousin," then the comic books are a probate asset.
  
  

Nonprobate Assets

• The property that is outside probate or that passes by operation of law encompasses the decedent's nonprobate estate. If the decedent placed everything he owned into a trust, then the terms of the trust control how his property is distributed and his entire estate is a nonprobate estate. Jointly-held assets typically pass by operation of law and are not probate property. For example, if the decedent owned a parcel of property with his cousin joint tenant with a right of survivorship, when the decedent died the cousin became the owner of the land by virtue of the way the property was titled; a probate court is not necessary for transfer of title. Joint bank accounts and life insurance proceeds are often nonprobate assets.
  
  

Other Issues

• While nonprobate assets are not governed by a probate court, it may be necessary to petition the probate court to complete a decedent's estate plan. For example, if the decedent created a trust, he should also create a pour-over will. The pour-over will states that any property that was not transferred to the trust by the time the decedent died should be transferred to the trust upon death. The pour-over will must be put through probate, since the property outside the trust is still a probate asset until it is given to the trust. Because probate and nonprobate assets involve legal issues and questions, you should speak to an attorney before proceeding.