Can You Clear Out a Home Before Probate in California?

A death in the family can be very emotional. It’s a time of mourning and grief, but also cherishing memories and coming to terms with your loved one’s passing. It’s only natural that you might want to collect sentimental items from their home as soon as possible.

Unfortunately, you can’t do that in California. The law in California prevents relatives of the deceased from removing items before probate. So, what exactly is probate? And, more importantly, what is the status of your loved one’s home during this process?

These aren’t things you probably don’t want to think about while you’re grieving, but it’s good information to know. We’re going to walk you through the answers to the above questions and get you the support you need during this difficult time.

What Is California Probate?

Probate is the court-supervised process of administering a dead person’s estate. It ensures that the rightful heirs of the deceased get the assets they are entitled to. The probate process includes:

• Validating the will
• Identifying, cataloging, and appraising all property
• Paying unsettled taxes and debts
• Distributing property according to the will or intestate succession laws

Even if the deceased left a will, you still need to wait for probate before you can clear their house. The executor of the will is responsible for carrying out the decedent’s wishes in probate court.

The probate process can take anywhere between three months to many years. The exact time depends on the size of the estate, the number of beneficiaries involved, and any instructions left in the will. 

Can You Clear a House Before Probate?

The short answer is no. While you may have good intentions, the state wants to stop anyone from removing items before probate to prevent fraud or theft. The home of the deceased may contain items of value, such as jewelry, money, and family heirlooms. The court doesn’t want anyone to (intentionally or unintentionally) take items the will specifically leaves to someone else.

Even if the probate process goes smoothly, it can still take a while before you can clear the house. The procedure is supposed to be time consuming; this is to prevent relatives of the deceased from making hasty, emotional decisions. Probate typically doesn’t start until weeks after a death, depending on court availability. 

What Happens to a House Undergoing Probate?

A house undergoing probate usually falls into one of these two categories:

• The house goes to the deceased person’s heirs, per the instructions of the will, and the heirs receive access to its contents. The beneficiaries also take over liabilities such as mortgage payments and capital gains tax if the value of the home goes up during the probate process.
• The house is transferred to a surviving spouse, child, or next of kin based on California instestate succession laws. This typically happens when the deceased hasn’t left a will.

When Does an Estate Not Go Through Probate?

The only instance you’re allowed to empty a house before probate is when probate isn’t legally required at all. Below are some of the most popular solutions for probate:

• Living trust – This is an alternative to a last will and testament that places your real property and assets “in trust” with an appointed trustee to manage them on behalf of your beneficiaries.
• Payment on Death (POD) designation – You can use POD designation to pick a beneficiary of your bank accounts upon your death without probate. The beneficiary won’t have access to your assets until you die.
• Transfer on Death (TOD) deed – This is also known as a beneficiary deed. It transfers your real property to your chosen beneficiary upon your passing. The designated beneficiary has no rights until your death, and the TOD deed can be revoked any time while you’re alive.
• Joint ownership – People who hold property as joint tenants with right of survivorship can avoid probate. If one of the joint tenants passes away, the surviving tenant automatically becomes the sole owner of the property.
• Community property – This only applies to married couples who share real property as joint tenants. Like with joint ownership, community property (i.e. property acquired during marriage) can be transferred to the surviving spouse if they have right of survivorship.

Need Help with Probate in California? 

It can be overwhelming to settle an estate when a loved one passes away. Between funeral costs, attorney fees, and other expenses, dealing with probate might seem impossible. The good news is you don’t need an attorney to probate a will.

In most cases, probating a will is a straightforward process that requires no legal representation. Unique probate circumstances that require retaining legal counsel do exist. However, a legal document assistant is more than enough for the majority of cases, especially if the beneficiaries are willing to work together. Contact A People’s Choice for more information!