What Is ProbateFrequently Asked Questions About Probate in San Diego, CA
What Is Probate?
What property is subject to probate?
What property is not subject to probate?
- Property held in a trust (Cal. Prob. Code § § 5000, 13050, Estate of Heigho (1960), 186 Cal. App. 2d 360, 364-365);
- Property held by decedent as a fiduciary or as trustee for another (e.g., Totten Trust) (Cal. Prob. Code § § 80, 5000);
- Property held in joint tenancy (Cal. Prob. Code § § 5304, 13050);
- Property held in a multi-party account (Cal. Prob. Code §§ 5304, 13050);
- Property which is a life estate (Cal. Prob. Code § 13050);
- Property held as community property with the right of survivorship (Cal. Civ. Code § 682.1);
- United States Savings Bonds (Cal. Prob. Code § 5000, Free v. Bland (1962), 369 U.S. 663, 669);
- TOD (Transfer on Death ) Registered Securities (Cal. Prob. Code § 5500);
- Property owned by contract such as life insurance proceeds (unless the policy directs payment to “the estate”) (Cal. Prob. Code § 5000);
- Benefits payable to a designated beneficiary such as retirement programs, IRA or Keogh plans, deferred compensation benefits, annuities (Cal. Prob. Code § 5000);
- Benefits payable to a designated beneficiary on a POD (Payable on Death ) bank account (Cal. Prob. Code § § 5000, 5340,13050);
- Employment-related death benefits (Cal. Prob. Code § 5000);
- Statutory benefits such as social security, veterans’ benefits, or workers’ compensation that have POD provisions for naming beneficiaries (Cal. Prob. Code § 5000);
- Automobiles (and other vehicles or vessels) owned in beneficiary form (form of ownership includes one owner and a direction to transfer ownership of the vehicle/vessel to a designated beneficiary on the owner’s death) (Cal. Veh. Code § § 4150.7, 5910.5, 9852.7, 9916.5; Cal. Prob. Code § 13050);
- Mobilehomes, commercial coaches, truck campers, floating homes (Cal. Health & Safety Code § §18080.2, 18102.2; Cal. Prob. Code § 13050).
When else is probate administration not necessary?
Is it possible to transfer real property (that is not a “small estate”) at death without a probate proceeding?
What property is not counted in determining the gross fair market value of the decedent’s estate for the purposes of determining whether it is a “small estate”?
- All items not subject to probate mentioned in Question 3 (Cal. Prob. Code § 13050);
- All property passing to a surviving spouse (or child) or registered domestic partner as mentioned in Question 4 (Cal. Prob. Code § 13050);
- Any money due the decedent for service in the armed forces of the United States is excluded (Cal. Prob. Code § 13050(c)(1));
- Up to $5,000 of salary or other compensation, including compensation for unused vacation, owing to the decedent for personal services from any employment is also excluded (Cal. Prob. Code § 13050(c)(2));
- Only the decedent’s half interest in community and quasi-community property is included in determining the gross fair market value of the decedent’s estate (Cal. Prob. Code § 100(a)).
What is the non-probate procedure for transferring California personal property of a “small estate”?
What is the non-probate procedure for transferring California real property of a “small estate”?
TRANSFERRING CALIFORNIA REAL PROPERTY WORTH OVER $20,000When the gross fair market value of the decedent’s California estate (at the time of the decedent’s death), including both real and personal property, is worth over $20,000 but does not exceed $100,000, and 40 days have elapsed since the death of the decedent, the successor of the decedent may use a simple Petition Procedure rather than probate to transfer the decedent’s interest in real property to the successor. See Question 9 for a description of the Petition Procedure.
TRANSFERRING CALIFORNIA REAL PROPERTY WORTH $20,000 OR LESSIf the gross fair market value of the decedent’s California real property is $20,000 or less on the date of death, the successor to the property may use an Affidavit Procedure rather than the Petition Procedure to transfer title (Cal. Prob. Code § 13200). See Question 10 for a description of the Affidavit Procedure. Even if there is a probate proceeding being conducted on the estate, the successor may use the affidavit procedure to transfer real property of small value ($20,000 or less) provided the personal representative consents (Cal. Prob. Code § 13200(e)).
What is the “Petition Procedure” for transferring real property of a small estate?
- Completing a petition form prescribed by law that includes an inventory (of all California personal and real property in the small estate), an appraisal (by a probate referee), and consent from the personal representative (if there is one)
- Setting a court hearing date
- Sending a notice of the hearing to all the “heirs” (relatives of the decedent who stand to inherit property when there is no will), the “devisees and legatees” (those people who are mentioned in the will), any named executor of the will, any named trustee of a trust established in the will, and any guardian or conservator of the estate of the decedent.
What is the “Affidavit Procedure” for transferring real property worth $20,000 or less?
Who is the “successor” entitled to the decendent’s personal or real property when there is no will?
For Single Decedents: If the decedent was not married at the time of death, the property goes to the following persons, in the order below:1. Children, equally. If a child is deceased but had children, the child’s share goes to his or her children equally.
2. If no living children, to the grandchildren equally.
3. If no children or grandchildren, to great grandchildren, equally.
4. Decedent’s parents equally, or to the surviving parent if one is deceased.
5. Brothers and sisters equally (half-brothers and sisters are considered the same as full brothers and sisters) with provision that if any brothers or sisters are deceased, their share passes to their children equally.
6. Grandparents, equally, or to the surviving grandparents if any are deceased.
7. Descendants of grandparents, such as aunts, uncles and cousins.
8. Descendants of a predeceased spouse (step-children).
9. Parents or the surviving parent of a predeceased spouse.
10. Descendants of the parents of a predeceased spouse, such as brother-in-law, sister-in-law or that person’s children.
11. Next of kin or nearest relative.
12. Next of kin or nearest relative of a predeceased spouse.
13. If none of the above, to the State of California.
For Married Decedents All community property and quasi-community property passes entirely to the surviving spouse.Any separate property of the decedent is distributed to the surviving spouse or domestic partner and other relatives, depending on the relatives who survive, as follows: 1. Spouse or domestic partner and children: One-half to spouse or domestic partner and one-half to one child if there is only one child. If there is more than one child, one-third goes to the spouse or domestic partner and two-thirds to the children, in equal shares.
2. If there are no children or grandchildren (if there is a deceased child, the children of the deceased child take his or her share), then one-half to the spouse and one-half to the decedent’s parents equally, or one-half to the surviving parent if one parent is deceased.
3. If there are no children, grandchildren, or parents of the deceased, then one-half goes to the spouse and one-half to the decedents’ brothers and sisters, equally (half-brothers and half-sisters share equally with full brothers and sisters). If there are any deceased brothers or sisters, the children of the deceased brother or sister take their parent’s share, equally.
4. If there are no children, grandchildren, parents, brothers or sisters, nieces or nephews, then all of the separate property passes to the surviving spouse.
For Domestic Partner Decedents: If a person dies and is survived by a domestic partner, the domestic partner inherits the same as a surviving spouse when the deceased spouse owned separate property. This would be one-half, one-third, or all of the assets of the deceased partner, depending on whether the deceased partner was survived by children, grandchildren, parents, brothers, and sister, nieces and nephews, or no relative.To qualify as a domestic partner, the parties must have completed and filed with the California Secretary of State a Declaration of Domestic Partnership form( http://www.sos.ca.gov/dpregistry/forms/sf-dp1.pdf ) and not revoked this prior to death.
What is the disadvantage of avoiding probate administration?
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525 South Virgil Avenue
Los Angeles, CA 90020 The information contained herein is believed accurate as of July 23, 2007. It is intended to provide general answers to general questions and is not intended as a substitute for individual legal advice. Advice in specific situations may differ depending upon a wide variety of factors. Therefore, readers with specific legal questions should seek the advice of an attorney.