Before you worry about probate, ask one question of each asset: does it pass automatically by how it's titled or who's named on it — or does it sit in the decedent's name alone with no one to receive it? That single sort determines whether you need probate at all, and if you do, which simpler path applies.
The good news: a surprising share of a typical estate is non-probate and passes on its own. What's left over is often small enough or simple enough to use a cheap summary procedure instead of full probate.
This is an educational guide prepared by a Legal Document Assistant. It is not legal advice, and ProbateClear is not a law firm.
The one rule that matters
A will does not keep assets out of probate. Titling and beneficiary designations do.
That surprises people. You can have a perfectly valid will and still have assets pass completely outside it — and outside probate — because of how they were owned or who was named on them.
Beneficiary designations override the willA payable-on-death account, a transfer-on-death designation, a named life-insurance beneficiary, or survivorship titling controls who receives that asset — even if the will says something different. For those assets, the designation wins. The will only directs assets that have no other home.
Non-probate vs probate assets at a glance
| Non-probate (passes outside probate) | Probate (may need a court path) |
|---|---|
| Joint tenancy property → to the surviving joint tenant | A bank account titled in the decedent's name alone |
| Community property with right of survivorship → to the surviving spouse | A house titled in the decedent's name alone |
| POD bank accounts & TOD securities → to the named beneficiary | A brokerage account with no TOD designation |
| Real property with a recorded TOD deed → to the named beneficiary | Any solo-titled asset with no named beneficiary or survivor |
| Life insurance, IRAs, 401(k)s → to the named beneficiary | |
| Assets titled in a living trust → through trust administration |
The left column passes automatically. The right column is what people mean by "probate assets" — and even those often avoid full probate.
How non-probate assets pass
Each of these moves on its own, regardless of the will:
- Joint tenancy property goes to the surviving joint tenant. You record an Affidavit of Death of Joint Tenant plus a PCOR with the County Recorder.
- Community property with right of survivorship goes to the surviving spouse, confirmed with an Affidavit of Death of Spouse.
- Payable-on-death (POD) bank accounts and transfer-on-death (TOD) securities go directly to the named beneficiary.
- Real property with a recorded transfer-on-death deed goes to the named beneficiary.
- Life insurance, IRAs, 401(k)s and other accounts with a named beneficiary go directly to that beneficiary.
- Assets titled in a living trust are distributed through trust administration — no court. The successor trustee serves the §16061.7 notice to beneficiaries within 60 days.
If most of an estate falls into these categories, there may be little or nothing left to probate.
What's left: probate assets — and the summary paths
A probate asset is anything titled in the decedent's name alone with no beneficiary and no surviving co-owner — a solo bank account, a house in one name only, a brokerage account with no TOD.
Even then, you often don't need full probate. California offers summary procedures for smaller or simpler estates:
- §13100 small-estate affidavit for personal property up to $208,850 (after a 40-day wait). See the small-estate affidavit guide.
- §13151 / DE-310 succession petition for a primary residence up to $750,000 (deaths in 2025 and later). See succession to real property.
- §13200 / DE-305 affidavit for real property under $69,625.
Why the sort matters so muchYou don't add up the whole estate to decide on probate — you add up only the probate assets. A $2 million estate that's mostly joint tenancy, trust, and beneficiary-named accounts can leave a small enough probate slice to qualify for a §13100 affidavit. The non-probate assets simply don't count against the limit.
Not sure which path is yours?
Answer a few questions about the estate — it takes about 2 minutes.
How to sort your own estate
Go asset by asset and ask one question each:
- Is there a surviving joint owner or spouse on the title? → non-probate.
- Is there a named beneficiary (POD, TOD, insurance, retirement)? → non-probate.
- Is it held in a living trust? → non-probate (trust administration).
- None of the above — it's in the decedent's name alone? → probate asset. Total these up to see which summary path, if any, applies.
You can do all of this yourself — the rules are public. But the sort decides everything downstream, and getting a single asset in the wrong column changes which form you need. The screener walks your list and tells you which path fits; a licensed Legal Document Assistant then prepares the needed paperwork for one flat fee, so each transfer goes through cleanly the first time.