Property Transfers After a Wrongful Death

What passes outside probate

A great deal of property never enters probate at all, and families routinely open an unnecessary probate because nobody told them so.

• Property held in joint tenancy, which passes to the surviving joint tenant
• Community property with right of survivorship, between spouses
• Assets held in a living trust
• Accounts with a payable-on-death or transfer-on-death beneficiary
• Retirement accounts and life insurance with a named beneficiary
• Vehicles, in many cases, through a DMV affidavit procedure

The small estate procedures

California provides simplified alternatives for smaller estates. For personal property, bank accounts, vehicles, personal effects, an affidavit under Probate Code section 13100 can be used once the statutory waiting period after death has run, provided the estate is within the applicable limit.

For real property, a petition to determine succession under Probate Code section 13150 can transfer a home without a full probate.

These dollar limits are adjusted periodically, so the figure that applied a few years ago may not be the figure that applies now. Check the current threshold rather than relying on what a relative remembers.

When probate is genuinely required

• The estate exceeds the small-estate limits and includes assets that do not pass by operation of law
• Real property is held solely in the decedent’s name and exceeds the section 13150 threshold
• There is a will contest, or a dispute among heirs about who takes what
• A survival claim needs a personal representative to pursue or settle it

Why this holds up a wrongful death case

Two moments cause trouble. The first is when a defendant will not release settlement funds without someone who has authority to sign for the estate. The second is when a survival claim exists, for the decedent’s pre-death medical bills, lost earnings and, since 2022, pre-death pain and suffering, and that claim belongs to the estate, not the heirs.

If a survival component exists, the estate side has to be handled or the case cannot close. Finding that out in month two is a scheduling matter. Finding it out at settlement is a problem.

One caution about creditors

Opening a probate starts a creditor claim period. Where the person died with significant debt, that is sometimes an advantage, because it cuts off claims after the period runs. Sometimes it is a disadvantage, because it invites claims that would otherwise never have been made.

It is worth a conversation before filing, not after.