A will is a legal document in which you direct the distribution of your assets to people or organizations you name in your will as beneficiaries. You can leave all of your holdings to one person or provide for specific gifts. All assets that pass by will in California are called probate assets. These can include real estate, personal property and bank accounts that are titled in your name at your death. Without a valid will, probate assets pass to family members under California's "intestate succession" laws.
You can take title to property in such a way that it will not become a probate asset upon your death; thus, will not pass to beneficiaries under your will. One familiar example in California is community property. In California, each spouse is entitled by law to one-half of the community property, also known as marital property, earned by the spouses during the marriage. Because of this legal entitlement, you can only give away your 50 percent share of the community property to someone under your will, not the full 100 percent, and any attempt to give more will be held invalid. Similarly, if you own real estate in joint tenancy with the right of survivorship, that property will pass to the other owners upon your death regardless of the provisions of your will. The same is true of a bank account held in the names of two or more people.
Other types of assets do not pass through probate because they involve a type of contract that names beneficiaries. Life insurance is such a contract. If you own life insurance, whomever is the named beneficiary will become the legal owner of the proceeds upon your death. The life insurance benefits will neither be probate assets nor pass under your will. Other benefits you can assign contractually before death include retirement benefits, death benefits and trusts. A payable-on-death bank account also falls into this category in California.
A payable-on-death account is an inexpensive way of creating a trust and allows you to leave someone cash upon your death without resorting to probate. In California, you can convert almost any bank account into a payable-on-death account by filing forms with the bank designating a beneficiary to receive the funds when you die. This kind of account leaves you total control of the assets. You can change your beneficiary at any time and are free to leave as much or as little money as you like in the account. California courts regularly recognize the validity of payable-on-death accounts and allow them to avoid going through probate.
Probate laws can appear complex and complicated to those untrained in the law. Individuals doing their own estate planning sometimes confuse probate and non-probate assets. If you attempt to leave an asset under your will that is not a probate asset, the attempt will be ineffective. For example, if you designate your wife as the beneficiary of a payable-on-death account and then attempt to devise the money in the same account to your children under your will, the language in the will will be declared invalid.