In a probate case, an executor (if there is a will) or an administrator (if there is no will) is appointed by the court as personal representative to collect the assets, pay the debts and expenses, and then distribute the remainder of the estate to the beneficiaries (those who have the legal right to inherit), all under the supervision of the court. The entire case can take between 9 months to 1 ½ years, maybe even longer.
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 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 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). You will have to file the Petition with the court, obtain and file an Inventory and Appraisal, and provide notice of hearing.
To use the simplified process for transferring personal property
First, 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 13050.
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.
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 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 Person Who Died Left MORE Than $150,000
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 find more information on Wills, Estates and Probate visit the CA Courts website by following our link above.
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 means that there is a court case that deals with:
Transferring the property of someone who has died to the heirs or beneficiaries;
Deciding if a will is valid; and
Taking care of the financial responsibilities of the person who died.