Following is a general overview of the laws governing the transfer of property owned by a deceased California resident at the time of death. All of the procedures are explained in detail in “How to Probate an Estate in California”, by Julia Nissley, published by Nolo Press and now in its 22nd printing.
What is Probate?
- The word “probate” is the term generally used to describe what happens to a person’s property when he or she dies. The primary purpose of a probate proceeding is to make sure all of the decedent’s debts are paid, and that the remaining property is transferred to the persons who are legally entitled to it. In California different methods are used, depending on the fair market value of the assets and how title is held.
- One of the first steps in settling an estate is to determine which of the decedent’s assets are actually “probate property.” Not all property in which the decedent had an interest is necessarily probate property. Some assets can pass to survivors outside a probate proceeding and aside from the terms of a will. This typically includes jointly-owned property that transfers by “right of survivorship” to the surviving joint owner(s), life insurance policies and pension plans that pay cash benefits directly to survivors, and property held in trust. Separate legal steps or procedures are required before non-probate property can be transferred or re-titled in the name(s) of the new owner(s).
Small Estate Administration
- Probate property on the other hand, as opposed to non-probate property, normally includes assets held in the decedent’s name alone. Sometimes probate property amounts to relatively little. If the gross value of the probate property does not exceed $150,000, one of California’s “summary administration” procedures may be used. These procedures are available in many estates because the $150,000 limitation does not include joint tenancy property (real or personal), property that passes outright to a surviving spouse or surviving registered domestic partner, life insurance proceeds payable to named beneficiaries, bank trust accounts or pay-on-death accounts, mobile homes, automobiles, or property held in trust. After a 40-day waiting period, any personal property (i.e., assets other than real property) can be transferred to the “successors of the decedent” with a simple affidavit. If real property is involved, a 2-page printed form petition may be filed with the court to obtain an Order transferring title to the successors. Alternatively, if the gross value of the real property does not exceed $50,000, a simple one-page affidavit may be used after 6 months. Summary procedures are a boon for estates that qualify. They save time and money and the estates are settled within weeks.
Property that Passes Outright to a Surviving Spouse or Registered Domestic Partner
- No formal probate administration is necessary for assets that pass outright to a surviving spouse or registered domestic partner. Nevertheless, title companies, stock transfer agents and other entities and/or persons who have control over certain assets usually require some sort of official document showing that the surviving spouse or partner is entitled to the property. In this case, a form petition can be filed to obtain a Court Order confirming that the property legally belongs to the surviving spouse or partner and that no formal administration is necessary. There is no waiting period and no limit on the value of the property that can be transferred under this procedure.
Formal Probate Court Proceedings
- Usually, a formal probate court proceeding is required if the probate assets have a gross value over $150,000. The probate property passes to the beneficiaries named in the decedent’s will, or if there is no will to the decedent’s heirs determined under California’s laws of intestate succession. A personal representative is appointed to see that the proper steps are taken, called the “executor” or “administrator.” The will usually names the decedent’s choice for executor. If there is no will, an administrator is appointed in a certain order of priority, starting with the surviving spouse, then children, etc. A formal probate court proceeding takes a minimum of 6 or 7 months to complete. Creditors are given four months within this period to file their claims against the estate. An inventory of the probate assets is prepared and sent to a probate referee appointed by the court who appraises the non-cash assets. Most probate forms are pre-printed forms with blank spaces to insert the required information, except for the final petition and order which are typed on legal numbered “pleading paper.”
Disclaimer: None of the information contained in this website should be considered as legal advice. Probate Direct is not a law firm and can only provide self-help services at your specific direction. Probate Direct is a registered legal document assistant, #295, Los Angeles County. (exp. 2-10-2015).