Probate vs. Non-Probate Property

Non-Probate Property Examples

1. Joint Tenancy 2. Life Insurance 3. Pay-on-Death & Transfer-on-Death 4. Inter Vivos Trusts

When someone dies testate?

Decedent leaves a will that provides for the disposition of property at death.

Intestate?

Decedent leaves no will. The probate estate passes by intestacy.

Per Capita with Representation

Default distribution scheme in CA. Under per capita with representation, an equal distribution is made at the first level where there is a live taker. If any of those heirs are deceased and leave issue, their share will be distributed equally among their living issue.

Per Stirpes

First division is made at the 1st tier always. 1 share is given to each party alive, and 1 share to each party dead but survived by issue.

Probate

No will, governed by the laws of intestacy.

Per capita at each generation

The first distribution is made at the 1st tier with a live taker, and 1 share is distributed to each party alive or each deceased party survived by issue. Shares at each generation are pooled together and distributed equally.

Tenancy in Common

Transferrable inter vivos (during lifetime) and at time of death. If no transfer is arranged, share goes into decedent's probate estate.

Which instrument is a probate avoidance technique?

Trusts

Life Insurance

Upon death of testator, insurance payment goes to named beneficiaries.

Pay-On-Death (POD) & Transfer-on-Death (TOD) Ks

Upon death of testator, payment goes to named beneficiaries.

Joint Tenancy

Upon death of testator, property automatically goes to other co-tenant. Includes right of survivorship. No right to devise, share is extinguished at death.