Disclaimer

Information on this web site is only intended as general summary information that is made available to the public. It is not intended to provide specific legal advice or to take the place of either the written law or regulations.

What is Probate?

It's legal proceeding to administer decedent's estate, probate will     (if any), and pass assets at death.

Probate takes place when a person dies. It is not always necessary to have a probate occur-property can be transferred by joint tenancy or as community property, for instance. The decease person in a probate is called decedent in legal jargon. The process involves having a person representative appointed, settling the claims of creditors, inventorying the estate during probate, and the distributing the estate to the appropriate heirs or beneficiaries.

Why Probate?

Why not let the assets which the decedent owned such as stock, bank accounts, and real estate be distributed as the person designated in accordance with his or her will.

How to Avoid Probate

The first possibility is to set up a living trust and name someone    (a close friend or relative) to be the trustee and to manage all his properties. When the person dies, the trustee pays the decedent's debts, taxes and all the other expenses, and then distributes the balance of the property to the beneficiaries.

A Living trust retains the privacy of the decent and his heirs, and averts part of the estate tax, which is not possible if the properties are probate. One popular form of living trust is the revocable trust. As the term suggests, the trust can be revoked at any time by the person who sets it up.

A second possibility is to institute an AB trust. This trust allows a married couple to preserve their unified credits and permits up to twice the total estate for transfer to heirs without estate tax. Thus AB trusts reduce or eliminate the total tax which the couple would have paid otherwise.

The third possibility is to gift all his properties to his heirs and beneficiaries. Though he pays some gift tax, it is far more economical than to let it undergo probate. But one problem is that the individual cannot guarantee that the gifted properties can be obtained back.

The fourth possibility is to go in for a joint property. This will render the property transfer to the joint signatory automatic on the individual's death.

Immediate Considerations:

Whether there will be a probate for the decedent's assets or not, a number things must be done immediately upon an individual's death. Death Certificate, Autopsy, Coroner's Inquest, Anatomical Gifts, Funeral Arrangements, Obituary Notices, Wrongful Death.

Fanancial Considerations:

Social Security , Pension or Annuity Payments, Pension, Profit-sharing and IRA Accounts, Unpaid Salary Vacation & Other Payroll Benefits, Final Income Tax Return, Life Insurance, Credit Life Insurance, Medical Insurance, Travelers Check, Credit Cards, Real Estate Taxes.

Other Consideration:

Medical-Cal, Safe Deposit Box, Valuation of Assets, Original Will, Bank Accounts, California Uniform Transfer to Minor Act, Decent as fiduciary.

Do you need an Attorney?

When it comes to probate matters though, a person needs to consult an attorney. An attorney can determine most accurately if probate is necessary and if it is necessary, the documents which have to be filed the court. Many people try to do this themselves. They usually start the procedure, get in over their head, and then have to get an attorney to conclude the probate. The costs frequently are greater than if the person had obtained an attorney at the beginning.

Where Do I find a Probate Attorney?

California attorneys plus a list of attorneys who specialize in probate can be found at the california State Bar Association. Web site at (www.calbar.ca.gov) or your local business phone directory.

SMALL ESTATE

To avoid probating estates, California has enacted Probate Code Section 13100. Over the years, the amount that could pass without probate has been increased, and effective January 1, 1997, the limit was raised to the current $100,000. The $100,000 figure is the value at the date of death of all assets which would normally be subject to probate. Only the gross value of the assets is used, and the liabilities are not taken into account in computing the $100,000 figure.

Many times a person dies thinking that everything is in joint tenancy. Sometimes assets such as cars, bank accounts, or stock are missed. As long as the assets that normally would be subject to probate are no more than $100,000 in value, this provision can be used. If more than $100,000 is in the decedent's name, all of it is subject to probate, not just the amount over $100,000. This section can be used instead of the spousal confirmation proceedings if the amount is less than $100,000.

The $100,000 figure does not include any of the following:

1) Assets in joint tenancy

2) Assets in a living trust.

3) Assets subject to beneficiary designation such as life insurance and employee benefits.

4) Assets such as bank and savings and loan accounts in a trustee or P.O.D. registration and securities in a T.O.D. registration.

5) Any vehicle, vessel manufactured home, mobile home, commercial coach, truck camper, floating home or undocumented vessel registered under the California Vehicle Code.

6) Any amounts due for service in the armed forces.

7) Up to $5,000 in final salary from an employer.

    Any individual who inherits the decedent's assets, whether by will or intestate succession may use this procedure.

Vehicles

     Provide that other assets are not being probated, title to automobiles and other vehicles registered under the California Vehicle Code can be transferred to the people who inherit the vehicles without probate, with the certificate of ownership, certificate of registration, a certified copy of the death certificate, and the appropriate Department of Motor Vehicle form. The Department of Motor vehicles has a special form to be signed stating that no probate is required.

 Personal Property

For assets which are deemed personal property, such as bank accounts, stock, vehicles, limited partnerships, or other investments, the people entitled to the assets sign a declaration and have this declaration notarized. They must wait at least 40 days from the date of death. Whoever receives this declaration transfers the asset without any liability on his or her part. The declaration which is submitted is fairly straightforward and is detailed in the Probate Code 28.

Tangible Personal Property

The hospital where the decedent died, police, and coroner may release tangible personal  property of the decedent such as clothing, jewelry, wallet, and other tangible property to the surviving spouse or other relatives, using a declaration under California Probate Code Section 13100 without waiting 40 days.

Real Estate Less than $20,000

If the $100,000 figure includes any real property, this real estate can also be transferred if the total assets subject to probate are less than $100,000. The procedure varies depending whether the real estate is $20,000 or less, or more than $20,000.

If the real estate in California is valued at not more than $20,000, then the beneficiaries under the will or the heirs at law all sign an affidavit. Attached to this affidavit is an inventory which lists the real property as o the date of death. This appraisal is completed by California probate referee. Also attached is a copy of the decedent's will, if there is one, and a certified copy of the decedent's death certificate.

The document is completed but cannot be filed for six months after the decedent's date of death. After completion, it is delivered with a copy to the county clerk of the county in which the decedent resided at the time of death. The clerk approves it, charges a $35 fee, and gives the party or parties a certified copy. This certified copy is then recorded in the county where the real estate is located. This serves to change title to the beneficiaries or heirs 30.

Real Estate of More than $20,000

If the real property is valued at more than $20,000, but the total assets subject to probate are less than $100,000, the procedure is different. A petition is filed with the court and a court hearing is held. This can be done any time after waiting 40 days from the date of death. The petition sets forth certain facts and has attached to it a copy of the will and an appraisal by the probate referee as of the date of death. After the petition is set for hearing, notice must be mailed to all of the parties named in the petition at 15 days prior to the hearing. At the court hearing, if everything is correct and there are no objections, the judge signs an order and the order is recorded in the county where the real property is located to change title.31

Salary of up to $5,000

If the decedent died while employed, and left a surviving spouse, up to $5,000 of compensation owed by the employer may be paid to the surviving spouse without probate.32

Right of Creditors

If assets pass to the surviving spouse under the spousal confirmation proceedings, the surviving spouse is liable for the debts of the decedent up to the value of the assets transferred. If the estate subject to probate is not more than $100,000 and the assets are transferred under Probate Code Section 13100, the parties who received these assets are liable for debts of the decedent up to the value of the assets received.

TIME LINE FOR PROBATE

While there is no fix period for the procedures in probate, the following is a general "timeline" for a standard probate, where there are no complications. The time is shown is in months.

 DUTY                                                        Total Time (months)

* Death Determining if probate is                         .5

necessary, if there is a will & who

has the right to serve. Drafting

necessary court documents.

*Court Hearing admit will, if                                 2.0

any, to probate and appoint executor

or administrator.

*Collecting Assets collect assets                           3.5

subject to probate & prepare inventory

*Pay Debts pay debts of decedent                         3.5

and mail notice of administration where

a creditor's claim is required.

*Inventory inventory filed with                               6.0

the court or extension to file requested.

*Creditor's Claim Period Expired                       6.0 

no further creditor's claims allowed

unless a late claim is permitted.

*Sale of Estate Assets                                         7.5

sell assets if necessary to raise funds

to make distribution.

*Estate Taxes                                                       9.0

if estate is large enough, a federal

estate tax must be filed or a extension

requested.

*Income Taxes                                                     9.0

determine if a fiduciary return

will be filed before the estate is closed

or if one will be filed later.

*Accounting prepares accounting                           10.

of recipts, distursements, sales and

assets on hand.

*Petition to Close draft                                         10.5

petition to court to close estate

and distribute assets.

*Court Hearing approval of                                  12.

accounting & orders concluding

estate and distributing assets.

*Transfer of Assets                                             13.

regarding of assets & delivery

to people entitled to them.

*Final Matters filing of                                          14.

final estate fiduciary tax return

& completion of all other matters

to conclude estate. Retention of tax

reserve for require period.

GLOSSARY

Administrator: Person or financial institution appointed by the court to handle an estate where there is no will.

Administrator C.T.A.: Administrator "con testamentary annexo," which means administrator with will annexed.

Administrator with the Will Annexed: Person or financial institution appointed by the court to handle an estate where there is a will but no executor is named or the named executor is deceased or declines to act.

Ancillary Probate: Probate undertaken in another state, in addition to the state where the decent lived.

Assets: Various items a person owns such as real estate, cash, bank accounts, stock, etc.

Attestation: Statement at the end of the will sign by the witnesses to the will.

Bequest: Personal property left at death.

By Right of Representation: A condition under which property is left to children equally. If a child deceased, the child's share is divided among that deceased child's children.

California Uniform Transfers to Minor act: California law which allows assets to go to a custodian for a minor without the need of a guardianship.

Codicil: A document which legally changes a will.

Community Property: (1) Title in the name of husband and wife, which allows the will to control one-half of the asset at death, and (2) Property acquired during marriage by husband and wife while living in California, or another community property jurisdiction.

Descent: Assets which pass at the time of death.

Devise: To give real property at death.

Devisee: Person or persons who receive real property under will at death.

Discharge: Formal release of executor or administrator by court after probate proceedings are concluded.

Disclaimer: Legal declining of an inheritance by person, allowing it to pass to another.

Domicile: State a person resides in at time of death.

Executor: Person or financial institution named in will to handle at death, and appointed by court.

Federal estate tax: Tax imposed by the federal government on assets owned at death.

Final distribution: Distribution of all assets held in an estate.

Gross estate tax: Amount of federal estate tax, before deducting various credits.

Guardian: Person or persons appointed by court to rear children and handle children's assets upon death of children's parents.

Guardian of the person: Person or persons appointed by court to rear children.

Guardian of the estate: Person or financial institution appointed by court to handle children's assets.

Heirs: People who receive assets when party dies without a will.

Holographic will: Will in the person's handwriting, dated and signed. No witness required.

Income in respect to a decedent: Taxable income received in an estate and taxed both for income tax and for federal estate tax.

Independent Administration of Estate Act (IAEA): Provision of California Probate Code giving executor or administrator greater flexibility in the administration of an estate.

Intestate: The condition of dying without a will.

Intestate succession: Law governing who receives assets from a decedent who dies without a will.

Inventory: List of assets showing assets subject to probate and their value as of the date of death.

Issue: Descendants such as children, grandchildren, great grandchildren, etc.

Joint will: A single will signed by two or more persons.

Joint tenancy: Form of registration of assets. Assets pass to the survivor at death and are not controlled by decedent's will.

Jurisdiction: County where probate proceeding are undertaken at death.

Legacy: Any asset which passes by will.

Letters: Court document showing the executor or administrator's authority to handle estate.

Marital deduction: Amount which one can leave to a spouse under the federal estate tax law. Amount is unlimited if the surviving spouse is a United States citizen.

Mutual will: Separate will signed by husband and wife with identical provisions.

Net estate tax: Amount of federal estate tax which will be paid after all credits are deducted.

Notice: Legal notice to all parties in an estate with regards to some action to be taken or of a court hearing.

Notice of death: Notice at the start of probate which is published in a newspaper and mailed to various parties.

Personal Proprerty: All assets owned except real property.

Personal representative: Term for person or bank handling an estate whether as executor, administrator, or administrator with the will annexed.

P.O.D.: Starndard for "payable on death." Assets goes to the named beneficiary and is not controlled by decedent's will.

Preliminary distribution: A partial distribution of assets in an estate.

Probate: Legal proceeding to administrater decedent's estate, probate will (if any), and pass assets at death.

Quasi-community property: Property acquired during marriage by husband and wife while living in another state or county (other than California or another community property state or county).

Real property: Land which a person owns including building and minerals.

Residue: What is left over and distributed out of an estate after all expenses, taxes, and specific and general bequestes are paid.

Revocation: Legal canceling previous will.

Seperate Property: Property owned by either spouses at the time of marriage or later acquired by gift or inheritance.

State death tax credit: The amount paid to the state in which the decedent lived under the federal estate tax.

Surety bond: Bond required in many estates to protect the estate and beneficiaries against loss caused by executor's mistaks or theft.

Taxable estate: Value of all decedent's assets at the time of death after taking off all liabilities and deductions.

Tenants in common: Way of taking title to assets so parties each own an undivided interest. Decedent's will controls interest owned at death.

Testate: The conditions of dying with a valid will.

Testator: Person who makes a will.

T.O.D.: Stands for "transfer on death." Assets goes to the name beneficiary and is not controlled by decedent's will.

Unified tax credit: Tax credit allowed person at death and deducted before federal estate tax is determined.

Will: Legal document passing assets at death.

Internet Web Sites

More and more information is becoming available with the internet and World Wide Web. At the time of the designing this web page the following World Wide Web sites are available for additional information and forms. Although the URL's listed here are accurate as of the date of May 2007, URL's do change from time to time.

Most forms and many explanations are set up in a "PDF" format, format which means that the files have an extension at the end showing ".PDF." This term stands for a "page description format," which means that the file or form, such as a judicial council or tax form, can be downloaded from web site to the individual's  computer and then later printed. Even if the file is downloaded, it is not interactive, so the form can only be printed out and then it must be completed on a typewriter.

To read and print these .PDF files one needs Adobe Acrobat Reader. This can be downloaded free from the Adobe Acrobat site (www.adobe.com/products/acrobat/readerstep2.html).

Judicial Council Forms

The forms used in probate can be obtained free from the California Judicial web site at (www.courtinfo.ca.gov/form). The forms can be downloaded individually or all of the forms used can be downloaded on one package.

California rules of court can also be found at this site at (www.courtinfo.ca.gov/rules) under Title Seven. Local rules of court for some but not all of the Superior Courts in the State of California can be looked up at (www.courtinfo.ca.gov/trialcourtlist.htm).

California Law

All of the Calif. codes, included the probate code, and the Calif. Construction, can be viewed at(www.leginfo.ca.gov/gov/calaw.html).

California Attorneys

California attorneys plus a list of attorneys who specialize in probate can be found at the California State Bar Association site at (www.calbar.ca.gov).

Attorney can be located by name or all attorneys in a county or city can be found by using the Martindale-Hubbell Lawyer Locator at (www.martindale.com).

Tax Information and Publications

Federal tax forms and information can be obtained directly from the IRS publication site at (www.irs.gov). The Internal Revenue Code is listed as part of the United States Code at (www.4.law.cornell.edu/edu/uscode). The Internal Revenue Code is a portion of the United States Code and is listed under Title 26. The California Franchise Tax Board site is at (www.ftb.ca.gov). Additional tax information, federal and state, can be obtained at tax information at (www.taxsites.com).

California Department of Real Estate

If real property is to be sold in a probate matter, it's very important that you hire a real estate brokerage firm that is specialized in real estate probate. Most important, before you contract an agent you should check agent's real estate license status at (www.dre.ca.gov).