Laguna Woods, CA asked in Probate for California

Q: On the DE111 form for Petition to Probate is a 401K included in the personal property even though it has a beneficiary

with no need for probate?

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2 Lawyer Answers
John B. Palley
John B. Palley
Answered
  • Probate Lawyer
  • Roseville, CA
  • Licensed in California

A: No, it is not.

Bill Sweeney agrees with this answer

David L. Crockett
David L. Crockett
PREMIUM
Answered
  • Probate Lawyer
  • Newport Beach, CA
  • Licensed in California

A: This is a very normal and thoughtful question. Generally speaking, assets such as life insurance policies and pension plans and 401k plans which have their own beneficiary designations (i.e. payable on death instructions) are not subject to probate so are not included in the personal property on the probate petition. Also,the DE111 form for petition for probate can later be amended if it is not accurate. Nobody really checks the accuracy of that anyway. More important is the probate inventory and appraisment form which is filed later on after the hearing on the petition for probate and the appointment of the personal representative.

The true test is whether the institution holding the 401k money will release the money to the payable on death beneficiary without a court order or without a court appointment as the probate persona representative. So I would recommend trying that and see what they say.

You may find my blog article giving more details on this subject useful. Here is the link: https://www.orangecountyestateplanninglawyer-blog.com/2014/12/probate-asset-inventory-collecting/

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