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UNDERSTANDING PROBATE AND PROBATE ALTERNATIVES
Probate is a legal proceeding required to settle a deceased person’s estate,
paying all debts of the decedent, and distributing the property to the heirs and beneficiaries. When a living trust holds
title to some of the decedent's property, however, that property also passes to the beneficiaries without the necessity of going through probate.
Previously, all estates had to be formally brought before a judge before assets could be distributed to the beneficiaries. In more recent
years, however, the courts have simplified the process and now there are several ways to transfer property at death. Some of these procedures do not even require formal court proceedings. The term
“probate” is often used loosely to describe any process where an estate is settled and distributed,
DO YOU NEED AN ATTORNEY TO PROBATE?
The law does not require you to hire an attorney to settle an estate. The average simple
estate can often be settled using the guidelines of self-help materials and the services of a registered legal document assistant to prepare your paperwork. Some complications that
may require special knowledge or handling by an attorney are:
- Ambiguities in a will
- Contested claims against the estate
- Estates that have more debts than assets
- Estates that have unresolved claims
One advantage of handling estate work yourself is not having to pay attorneys’ fees.
Attorneys’ fees have been set by law and are based on a percentage of the gross estate. These statutory fees are based on a formula found in California Probate Code §§10810 and
10811. An attorney may collect:
- 4% of the first $100,000 of the gross value of the probate estate;
- 3% of the next $100,000;
- 2% of the next $800,000;
- 1% of the next $9,000,000;
- ˝% of the next $15,000,000; and
- a “reasonable amount” as determined by the court for everything above $25,000,000.
For example, in a probate estate with a gross value of $150,000, the attorney may collect $5
,500. If the estate was valued at $400,000, fees would be $13,000. The value of the estate is not reduced by any mortgages or debt that may exist. For example, if an estate consisted
of one piece of real property worth $600,000 that had a $500,000 mortgage which reduced the decedent’s equity to only $100,000, the attorney’s fees would still be $15,000 based on
the gross value of the estate.
Probate proceedings can be categorized into two different types, simplified probate
procedures and regular probate. Simplified probate procedures are more fully explained below. If the estate does not qualify to file under one of the simplified procedures, click here
to learn about a full probate proceeding.
SIMPLIFIED PROBATE PROCEDURES: Small estates with assets worth $100,000 or less may be settled without formal probate proceedings, using relatively simple
transfer procedures. This summary form of probate is available regardless of whether the assets are real property or personal property as long as the following are true:
- No administration proceedings are pending or have been conducted for the
decedent’s estate; or, if they have, the personal representative has consented in writing to the summary procedure.
- The gross value of all real and personal property owed by the decedent in California
on the date of death is no more than $100,000. (This figure is the value of the property, not counting any money owed on the property).
There are three separate procedures for small estates:
- For personal property
- For real property not exceeding $20,000 in value
- For real or personal property not exceeding $100,000 in value
- For property entitled by a surviving spouse
If the estate qualifies, anyone entitled to inherit property from the decedent, whether as a
beneficiary under the will or an heir under intestate succession laws, may settle the estate and obtain title or possession of the property with these simplified transfer procedures most
cases, the procedure can be completed in just a few weeks after the 40-day waiting period (six months for estates under $20,000).
In addition to the above procedures for small estates, there is also a simplified probate
procedure for spouses or domestic partners. Refer to the Spousal Property Petition section below.
Determine whether you can use a simplified procedure: To find out if some or all of the decedent’s assets may be transferred using one of the simplified procedures
referenced in 1, 2 or 3 above, you must first compute the gross value of all property the decedent owned when he died.
Property excluded from computation: Certain assets are not counted in computing whether or not the estate falls within the $100,000 gross value limitation. As a
result, many larger estates may qualify to use these summary procedures to collect or transfer minor assets that would otherwise require a formal probate proceeding. The
following property isn’t counted:
- Real property outside California
- Joint tenancy property
- Property passing outright to a surviving spouse
- Life insurance, death benefits or other assets that pass directly to named beneficiaries outside of probate
- Multiple-party accounts and pay-on-death accounts
- Any manufactured home, mobile home, commercial coach, floating home or trust
camper registered under the Health and Safety Code
- Any vessel numbered under the Vehicle Code
- Any motor vehicle, mobile home, or commercial coach registered under the Vehicle Code
- Amounts due the decedent for services in the armed forces
- Salary or other compensation not exceeding $5,000 owed the decedent
- Property held in trust, including a living trust in which the decedent had a life estate
or other estate that terminated on the decedent’s death
- Transferring Different Types of Property
SIMPLIFIED PROCEDURE #1: Transferring Personal Property By Affidavit:
To receive property by this streamlined procedure, the person entitled to the property must present an
affidavit to the person, representative corporation or institution having custody or control of the property, or acting as a registrar or transfer agent of the property, requesting that the
property be delivered or transferred to them. If there are several assets to be transferred, they may all be included in one affidavit, or a separate affidavit may be used for each. When
using this affidavit procedure to collect or transfer personal property, the following rules apply:
- At least 40 days must have elapsed since the death of the decedent before the
affidavit or declaration is presented to the holder of the property.
- No administration proceedings may be pending or have been conducted for the decedent’s estate.
SIMPLIFIED PROCEDURE #2: Transferring Real Property Not Exceeding $20,000 in
Value by Affidavit: If the estate contains real property not exceeding $20,000 in value, title
to the property can be obtained by the successors of the decedent by filing an Affidavit re Real Property of Small Value with the Superior Court of the county in which the property is
located and then recording a certified copy with the county recorder. Some special requirements apply to this procedure:
- The affidavit may not be filed until six months after the decedent’s death.
- No probate proceedings may be pending or have been conducted in California for the estate.
- Funeral expenses, last illness expenses and all unsecured debts of the decedent
must have been paid before the affidavit is filed.
SIMPLIFIED PROCEDURE #3: Transferring Real Property Not Exceeding $100,000 in
Value: If the decedent owned property in California not exceeding $100,000 in value, the
heirs or beneficiaries may file a simplified procedure with the Superior Court asking for an order to determine their right to take the property without probate administration. The petition
is called a Petition to Determine Succession to Real Property. It is primarily used for real property, but also includes a request to determine the successor of certain personal
property as well. If there is only personal property in the estate, the affidavit discussed above under “Personal Property” should be sufficient.
When using this Petition procedure to collect or transfer real property under $100,000 in
value, the following rules apply:
- At least 40 days must have elapsed since the death of the decedent before the
affidavit or declaration is presented to the holder of the property.
- No administration proceedings may be pending or have been conducted or the decedent’s estate.
- The gross value of the real and personal property in the estate does not exceed $100
,000 (excluding the allowed exceptions).
This abbreviated proceeding can be used to transfer title to real property under $100,000
more quickly than is allowed under the affidavit procedure which has a six-month waiting period.
SIMPLIFIED PROCEDURE #4: Sousal Property Petition:
All property that a surviving
spouse or domestic partner is entitled to receive outright from a deceased spouse or partner may be “set aside” to the survivor without formal probate. There is no limitation on the
amount or value of the assets to be transferred and includes community property, separate property and quasi-community property (property acquired by married or registered couples
outside California that would have been community property if acquired in California). To qualify as a “surviving spouse,” the survivor must have been legally married to the decedent
at the time of death. To qualify as a “surviving registered domestic partner,” you must have registered your partnership with decedent through the California Secretary of State by filing a
Declaration of Domestic Partnership Form DP-1.
A Spousal Property Petition would be appropriate for the following types of property:
- Real property held in the names of the spouses in joint tenancy or where the deed
does not indicate the manner in which title is held
- Real property held in the name of the decedent alone or with a third party
- Securities, stocks and bond in the names of the spouses as “community property” or
“tenants in common” or in the name of decedent alone
- Trust deed notes or promissory notes payable to decedent alone or decedent and
surviving spouse
- Motor vehicles in name of decedent alone or in name of decedent and surviving
spouse but not joined by “or”
- Bank accounts in the name of the decedent alone or decedent and surviving spouse
The Spousal Property Petition is filed in the county in which the estate of the deceased
spouse may be administered.
When The Simplified Procedures Don’t Apply
Unfortunately, the above simplified procedures may not be available for some estates. When a person has died and has not made necessary pre-death arrangements to avoid Probate,
and when the estate does not qualify under one of the simplified procedures offered under California law, the only option may be to file a full, formal Probate proceeding. For more
information, on filing a complete Probate proceeding, click here.
Filing Your Proceeding Using our Self-Help Services:
In view of the voluminous paperwork required by the court, preparing all of the necessary
probate documentation can easily be overwhelming for the average lay person. For routine proceedings, this process can easily be facilitated with the assistance of a registered Legal
Document Assistant.
Our services include the preparation and court processing of your court documents and
scheduling of the required hearings. In addition, our office offers a comprehensive self-help library which is available to all clients during document preparation services performed in our
office as well as a complimentary attorney-approved self-help booklet pertaining to your particular type of proceeding. To proceed with your document preparation, click on the link below
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