Probate is the court-supervised process of distributing a deceased person’s estate. If the law does not provide a short-cut solution, also known as a "summary probate," then the court will preside over the formal probate. Below you will find various solutions to reach your end goal - transferring the decedent's property to the rightful heirs and beneficiaries.
Probate is the court-supervised process of distributing a deceased person’s estate. The court will appoint a personal representative that is responsible for settling the final affairs - such as paying debts, selling off property, and distributing what remains to the heirs or beneficiaries.
However, it must all be done through the court proceedings and get approved by a judge. There are petitions, notices, pleadings and many things to take care of, plus, a number of hearings to attend.
I represent personal representative and executors during probate. I do not charge in advance so there is no cost to the personal representative.
Petition to Set Aside a Small Estate
The Petition to Set Aside a Small Estate is summary probate petition under California Probate Code Sections 6600 - 6615. The law allows a surviving spouse and/or minor children of the decedent to file a petition in probate court for a summary probate when the net value of the estate is worth less than $20,000. In addition, an Inventory and Appraisal must be filed with this petition.
The net value is unique since other probate procedures calculate the estate’s value on the gross value of the assets, regardless of the value of any liens. The entire estate might be able to pass through this petition and other methods, such as beneficiary designations, joint accounts, payable on death accounts, and joint tenancy, while technically worth much more.
The biggest downside is that the person who gets title to the property will also have to pay all of the decedent’s unsecured debts up to the value of the estate and is personally liable for the debts for one year. Also, there is at least one court hearing involved.
California has some simplified probate procedures for transferring of real estate and personal property of generally small estates when the deceased has not left a will. These procedures are also known as a summary probate.
If you can meet all of the various requirements spelled out in the applicable laws, you may use the simplified process to transfer the estate property without a full probate administration. It is recommended that you carefully consider the big picture before using summary probate over a full probate. I say this because you will become liable for the unsecured debts of the decedent if you chose the simplified procedure. Please scroll down for further information.
Side note: While these procedures are useful for the loved ones of the deceased, they are not necessarily recommended for estate planning since there are numerous advantages to proper estate planning that you may miss out on, especially the planning for incapacity. I would be happy to answer your questions about that.
Spousal Property Petition
When a spouse dies without a will (intestate), all of his or her property passes to the surviving spouse and probate administration is not required. This also applies when the spouse dies and in the estate plan, the deceased spouse leaves everything to the surviving spouse.
However, if the surviving spouse (or domestic partner) needs to transfer the title or confirm that the property does indeed belong to the surviving spouse (or domestic partner), there is a simplified, summary proceeding for that, under California Probate Code Section 13500.
If the decedent’s estate is not complicated, the Spousal Property Petition may confirm any questions regarding the title or ownership of property. It can often be done in one hearing if proper notice has been given to the right persons.
Affidavit to Transfer Personal Property Worth Less than $150,000
An affidavit prepared under California Probate Code Section 13100 can be used to transfer any type of personal property that belonged to the decedent, except real estate (real property), as long as the asset is less than $150,000. The affidavit can be used after 40 days from the decedent’s death and it must contain the exact wording from the probate code.
The beneficiaries and/or heirs must all sign the affidavit and all those that sign the affidavit are liable for the decedent’s unsecured debts, up the amount received.
Assets that pass by beneficiary designations, joint accounts, payable on death accounts, and joint tenancy, are not included in determining the limit of $150,000. The compensation owed to the deceased spouse, community property, motor vehicles, mobile homes, campers, and vessels are also not included.
Collection of Compensation Owed to Deceased Spouse
The surviving spouse may provide the deceased spouse’s employer with an affidavit prepared according to California Probate Code 13601and collect compensation owed to the decedent.
The surviving spouse may collect up to $15,000 net in compensation owed, including unused vacation time.
If the employer refuses to pay, the surviving spouse has the right to sue the employer and get their attorney’s fees paid if the court decides that the employer acted unreasonably.
Petition to Determine Succession to Real Property
When the real estate (real property) of the decedent has a gross value of less than $150,000, a Petition to Determine Succession to Real Property can be used as a summary probate procedure. According to California Probate Code Section 13150, 40 days after the death, the petition can be filed.
You must obtain an appraisal by the court’s probate referee and all of the decedent’s heirs must sign the petition before filing the petition. In addition, an Inventory and Appraisal must be filed with this petition.
A court hearing is required and proper notice of the hearing date must be provided to the heirs and beneficiaries. Plus, the beneficiaries and/or heirs must all sign the affidavit and all those that sign the affidavit are liable for the decedent’s unsecured debts.
Affidavit to Transfer Real Property of Small Value
When the real estate of the decedent is valued at less than $50,000, an Affidavit to Transfer Real Property Worth Less than $50,000 can be used. According to California Probate Code Section 13200, six months after the death, all of the decedent’s heirs or beneficiaries sign the affidavit, while witnessed by a notary. Also, all of the decedent’s debts must have been paid before filing this form.
The affidavit is filed in the probate court clerk’s office. The probate examiner (a court employee) will review it but a court hearing is not required. Eventually, you will get a court-certified copy of the affidavit back. That is then recorded at the county recorder’s office.
Occasionally a person will have prepared a Trust as part of an estate plan but for various reasons not all of his/her assets have been put into the trust (this is called “funding”) prior to that person’s death. Without proper funding, the assets outside of the trust may need to be probated (e.g., real estate held in the name of the decedent).
In such cases, a “Heggstad Petition” can be filed with the court per California Probate Code Section 850. The Petition will request the court to permit the property to be titled into the name of the trust, instead of having to probate that asset, provided there is some evidence that the decedent intended for that property to be in the trust.