As your trusted Realtor, it is my obligation to provide the information you need to set you in the right path to further research Real Estate matters . When it comes to legal matters, such as a probate you should consult an attorney that can advice you on your specific situation. The information provided here is meant to give you an overview of the probate process and assist you better communicate with your attorney.
Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died.
To do this, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court. But it is not always easy to tell whether you need to go to court or qualify to use a different procedure.
This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case.
What Is “Probate”?
Probate is a term that is used in several different ways. Probate can refer to the act of presenting a will to a court officer for filing — such as, to "probate" a will. But in a more general sense, probate refers to the method by which one’s estate is administered and processed through the legal system ( through court) after a person dies.
Matters addressed in a probate court case:
• Pays debts you owe
• Transfers assets to your beneficiaries
A state court called the probate court oversees the probate process.Because probate courts are state courts and not federal courts, the processes they follow may vary from one state to another. Yet despite their differences, these courts all pretty much follow the same basic processes and steps.
Deciding If You Need to Go to Probate Court and Whether You Can Use Simplified Procedures
You may or may not need to go to probate court to obtain title to property belonging to a dead person. Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property.
And deciding if probate court is needed may also depend on the how the property is owned (the type of title ownership) or if there is some type of contract with beneficiaries. For example:
• Type of Title Ownership: : Sometimes all or some of a dead person’s property passes directly to the beneficiaries because of how the property is owned. So if the property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people, or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to clarify his or her ownership of the transferred property.
• Type of Contract: Sometimes all or some of a dead person’s property does not need to go through probate to pass to the beneficiaries. This is because this property is a type of contract with named beneficiaries. Examples of this are life insurance that pays benefits to someone else other than the dead person’s estate, retirement benefits, death benefits, and trusts.
If the Person Who Died Left $150,000 or LESS
If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $150,000 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.
• Keep in mind, this process CANNOT be used for real property, like a house. If the person left $150,000 or less in real property, including some personal property, you may be able to use a form called Petition to Determine Succession to Real Property (Estates $150,000 or Less) (Form DE-310). You will have to file thePetition with the court, obtain and file an Inventory and Appraisal (Form DE-160), and provide notice of hearing. Talk to a lawyer to make sure you can use this simplified process in your case..
To use the simplified process for transferring personal propertyFirst, figure out if the value of the property (the estate) is worth $150,000 or less. To do this:
• All real and personal property.
• All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).
Do not include:
• Cars, boats or mobile homes.
• Real property outside of California.
• Property held in trust, including a living trust.
• Real or personal property that the person who died owned with someone else (joint tenancy).
• Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.
• Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries.
• Unpaid salary or other compensation up to $5,000 owed to the person who died.
• The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)
• Bank accounts that are owned by multiple persons, including the person who died.
For a complete list, see California Probate Code section 13050ﾧ.
If the total value of these assets is $150,000 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers.
If You Were Married to or Were a Registered Domestic Partner of the Person Who Died
You may be able to use a simple form, called a Spousal or Domestic Partner Property Petition (Form DE-221) to get a court order that says:
• What your share of the community property is; and
• What part of your deceased spouse or partner’s share of community and separate property belongs to you.
If the surviving spouse/partner is legally entitled to all of the property, a more complicated probate procedure may not be required. For example, a couple that was married for decades may only own “community property,” which belongs to the surviving spouse/partner and is confirmed by the court in the spousal property petition case.
If the dead person’s property is worth more than $150,000, none of the exceptions apply. You must go to court and start a probate case.
To do this, you must file a Petition for Probate (Form DE-111). This one form has different options, such as:
• Petition for Probate of Will and for Letters Testamentary
• Petition for Letters of Administration
Talk to a lawyer if you are not sure which option you
Steps to Take If the Case Belongs in Probate Court
1. The custodian of the will (the person who has the will at the time of the person’s death) MUST, within 30 days of the person’s death:
• Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
• Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.
NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration (Form DE-111). The administrator usually is the spouse, domestic partner, or close relative of the dead person.
2. Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (Form DE-111). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
The Petition for Probate has different options, like:
• Petition for Probate of Will and for Letters Testamentary
• Petition for Probate of Will and for Letters of Administration with Will Annexed
• Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form. Talk to a lawyer for help with your case.
3. After a probate case is filed:
• The probate clerk sets a hearing date.
• The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (Form DE-154), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
• The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
• The petitioner must arrange for notice to be published in a newspaper of general circulation.
• A court probate examiner reviews the case before the hearing to see if it was done correctly.
• Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
• The personal representative gathers up the assets and prepares an Inventory and Appraisal (Form DE-160) to be filed. The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county. (Get more information on probate referees.)
• The personal representative provides formal notice to creditors with the Notice of Administration to Creditors(Form DE-157) and pays the debts.
• A final personal income tax return is prepared for the person who died.
• The probate court figures out who gets what property.
• A Report of Sale and Petition for Order Confirming Sale of Real Property (Form DE-260) is filed with the court so that sales of real property are confirmed by the court.
• If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
• The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
• After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
The information provided here was provided by Paul Horn Attorney at Law