In other words, must there be a full-on probate in California because the real property asset (assuming a value in excess of $20,000.00, no joint tenancy or transfer on death provision in the deed) was in the decedent’s name alone when he/she died?
Likely the answer is no. Assuming that there is a trust and for purposes of example, a surviving spouse, there will have to be a petition filed in the probate court (per Probate Code §850) to get the real property asset transferred to the trust, but that is not the same as a full-on probate.
Consider this set of facts: Husband, in California, acquires a parcel of land while he is married and fails to have his wife’s name put on it. In fact, let’s say that he takes title as a married man, as his sole and separate property. He dies. There is a family trust and if someone had thought about it, the decedent would have been counseled to place the property into the name of the trust, thus avoiding any probate proceeding. Alas, that was not done. Please note, I am ignoring any Family Law issues in this discussion.
The widow, who rightfully should receive the parcel of land, asks what can be done? Careful scrutiny of the trust document shows that it contains an Exhibit “A”, in which it is stated that the creators of the trust (the decedent and his wife) assign all of their interests in real estate to the trust.
That language generally is enough to justify the filing of the Probate Code §850 petition, which essentially asks the court for an order stating that the parcel of land actually belongs to the trust, because that is what the parties intended when the trust was created….regardless of it being actually titled to the decedent.
These petitions are quick (relatively) and straightforward… I have used them successfully to transfer stock in a family corporation that the decedent took in his own name, even though the intent of the decedent was to have the stock go into the trust for the benefit of his widow. It doesn’t have to be a parcel of land…. it can be almost anything.
So if there is a trust and an asset that should have been titled to the trust but was not, all is not lost. There are ways to get the property into the trust other than a full-on probate proceeding, with its attendant costs and duration.