California — Including Assets That Passed by Right of Survivorship on the Probate Inventory

Detailed Answer

Short answer: In most cases under California law, assets that transfer automatically to a surviving joint owner by right of survivorship are not part of the decedent’s probate estate and therefore generally are not included as probate assets on the personal representative’s inventory.

What that means: When two or more people hold property as joint tenants or as community property with right of survivorship, the surviving owner(s) receive the property automatically at the moment of death. Because title passes outside probate, the property is typically excluded from the probate inventory that the personal representative must prepare for the decedent’s probate estate.

Legal requirement: The duty to prepare and file an inventory and appraisal of the decedent’s probate property is set out in California Probate Code § 8800. That inventory is meant to list property of the decedent that is subject to administration in the probate case. See California Probate Code § 8800: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=8800.&lawCode=PROBATE.

Common exceptions and practical points:

• If title is ambiguous or the survivorship claim is contested, you may need to disclose the asset in some form on the probate filing or provide documentation supporting the nonprobate transfer.
• If the decedent held the asset in joint name but the asset was contributed wholly by the decedent and a creditor seeks payment from the estate, creditors sometimes attempt to reach jointly held assets. Whether creditors can access those assets depends on facts and law; do not assume immunity without checking.
• Some assets have beneficiary designations (payable-on-death, transfer-on-death, life insurance, retirement accounts). These usually pass outside probate and normally are not listed as probate property; however, they may be relevant in estate accounting or to resolve disputes.
• Even when the property passes outside probate, it is often useful to attach a short explanatory schedule or a note to the inventory indicating that the asset existed and that it passed by survivorship, with supporting documents (death certificate, deed or account statement) to make the record clear.

Practical application (hypothetical): If your mother and your deceased parent owned the family bank account as joint tenants with right of survivorship, the account balance passed immediately to your mother and, in a routine probate case, you normally do not list that account as an asset of the probate estate. But you should keep the account records, a certified copy of the death certificate, and proof of account title to show why the account was not part of probate. If someone contests the right of survivorship or if the personal representative is accounting for all transfers of wealth for tax or creditor purposes, additional disclosure may be required.

When you should list a survivorship asset on the inventory or otherwise disclose it:

1. Title is unclear or contested.
2. The personal representative exercised control over the asset after death (for example, used funds to pay estate debts) and accounting will be required.
3. State or federal tax, Medicaid, or creditor issues make disclosure necessary.

Bottom line: Do not place routine survivorship property on the probate inventory as if it were part of the probate estate. Instead, document the transfer and be prepared to explain and produce proof. If there is any dispute, creditor concern, or unusual fact pattern, get legal advice tailored to the case.

Helpful Hints

• Collect documentation: death certificate, deeds, account statements showing joint ownership, beneficiary designations, and any recorded survivorship agreements.
• Check account titling carefully: distinguish joint tenancy, community property with right of survivorship, and accounts with a payable-on-death (POD) or transfer-on-death (TOD) designation.
• Attach a short explanatory schedule to the probate inventory listing nonprobate transfers and citing the supporting proof even if you do not list the asset as a probate asset.
• If a creditor or heir contests the transfer, preserve records and consult an attorney promptly—timing can matter for defenses and claims.
• If you are the personal representative, follow the inventory and appraisal procedure in California Probate Code § 8800 and any local court rules; ignoring required inventories can cause problems for estate administration. See: Cal. Prob. Code § 8800.
• When in doubt, ask a probate attorney: title nuances and creditor/tax risks can change what you must do.

Disclaimer

This article is for general informational purposes only and does not provide legal advice. It does not create an attorney-client relationship. For advice about a specific situation, consult a licensed California attorney who handles probate and estate matters.