GOING INTO PROBATE?
LET’S MAKE THIS TASK EASIER FOR YOU
Losing a loved one is a sad and difficult time for family, relatives, and friends. And while you may be experiencing a flood of emotions, you may need to make some difficult decisions; especially if you have been charged with the task of an executor or personal representative. And I am here to help you through as a real estate agent specializing in real estate and probate property sales in California.
Those left behind must often figure out how to transfer or inherit property from the person who has passed. The property that a person leaves behind when they pass is called the “decedent’s estate.” The “decedent” is the person who died. Their “estate” is the property they owned.
To transfer or inherit property after someone dies, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. And while all this is spinning around you, the heirs may not be united on decisions during this time of grief, which amplifies the stress.
As an experienced Real Estate Professional, I am committed to making sure that you are well-informed in regard to these decisions – especially as they pertain to real estate. I will also help you with some of the difficult conversations you may have to have with family members and other heirs. I’ll help you at every step along the way and do everything possible to steer you clear of the minefields. Of course, you’ll still have to make some challenging choices, but having an experienced advisor by your side makes the task significantly less lonely and stressful.
Quick Sale
Here’s where I really shine. First, I will help you determine specifically what the most critical objective or objectives are regarding the real estate that’s involved in the estate. If so, I can provide immediate cash buyers from my list of qualified investors. Often, this is vital to allow a surviving spouse to move into a more suitable location, handle medical or other bills or simply get asset funds into the hands of the heirs quickly. My investors can often make offers within 24 hours on almost any property and can close quickly. Sometimes, funds can even be advanced prior to closing. Of course, timelines are frequently subject to the courts and filing timelines which are beyond our control, but our efforts minimize these delays whenever possible.
Best Value
Do you need to maximize the selling price to provide the greatest cash benefit to the heirs/stakeholders? When maximum revenue is the focus, I’ll make certain the property is not only listed properly but marketed aggressively and intelligently to assure maximum exposure. With the power of RE/Max Gold network of 90,000 agents, I’ll make sure you know exactly what the property is worth if you are willing to wait for the right buyer and I’ll help you determine any possible repairs (if any) that might add more to the final selling price than their cost – in other words, the greatest bang for the buck. Be aware that all too often, ill-informed sellers spend far too much on repairs that do not even cover their cost in the final sale price. This is where my experience, preparation, and savvy marketing skills really shines.
What are the different ways an estate can be transferred after someone dies?
It depends. There are some ways that do not involve going to probate court.
Here are some common examples:
If a particular asset (like a retirement plan, life insurance policy, or a bank account) already has a named beneficiary, that asset goes to the beneficiary (or beneficiaries, if there are more than one) without going to court.
If a house is owned by two or more people as joint tenants, the other owners have the right of survivorship, which means that they inherit the entire property in their name.
Real estate sometimes can be transferred without court with a transfer-on-death deed (also called a beneficiary deed).
Property in living trusts can be transferred without going to court.
There are also some simplified procedures for estates that are under $166,250. Read Simplified Procedures to Transfer an Estate to find out different ways to transfer property that do not involve going to court.
Any portions of the estate that can’t be transferred more informally will likely have to be dealt with in probate court. How the estate is dealt with will partly depend on whether the decedent died with a will or without one.
What Is “Probate” in California?
Probate means that there is a court case that deals with:
Deciding if a will exists and is valid;
Figuring out who are the decedent’s heirs or beneficiaries;
Figuring out how much the decedent’s property is worth;
Taking care of the decedent’s financial responsibilities; and
Transferring the decedent’s property to the heirs or beneficiaries.
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.
First Steps in Dealing with an Estate When Someone Dies
Step 1: Figure out who will be the estate representative.
The first thing is to figure out who will be the representative of the estate. If there is a will, the representative is the executor named in the will.
If there is no will, it depends whether the case needs to go to probate court or not.
If the estate is small or the estate can pass to other people through simplified procedures informally, then a close relative, often the person who will inherit most of what is left behind can be the informal estate representative.
If the case has to go through a formal probate court case, then the court appoints an administrator to be the estate representative.
If someone dies without a will, the law gives a priority list for who should be the administrator. You can find the full list in Probate Code §8461 . As you may imagine, the surviving spouse or legal domestic partner is at the top of the list, with children as the second category, grandchildren as the third, and so on.
Sometimes, it is not clear who should be estate representative, like, if the will does not name an executor and more than one person has the same priority, or there is a disagreement between heirs as to who should serve, or the person with the higher propriety has a conflict of interest, and many more. Talk to a lawyer if this may be your situation.
If you are the estate representative, keep in mind that:
You must be trustworthy, very organized, and act diligently and responsibly.
You must always stay informed of your responsibilities, keep good records, and communicate with everyone involved.
Until the property goes to the right beneficiary, you are responsible for managing it in everyone’s best interests. This is called a “fiduciary duty.” You have a duty to act responsibly and honestly. If you break your duty, you may end up being personally responsible for any loss to the value of the estate.
Step 2: As estate representative, start gathering information and fulfilling your duties.
As an estate representative, there are a number of preliminary duties you have:
Take possession of the property and safeguard it until everything is distributed and any debts are paid. For example, if the assets are in the decedent’s house, make sure the house is secure, and store any important papers and valuables in a safe place.
Find the will, if there is one.
Get certified copies of the death certificate. You will need them for many of your duties.
Collect any assets and death benefits, if you can, such as bank account funds, life insurance proceeds, annuity benefits, Social Security death and survivor benefits, veteran’s benefits, etc.
Figure out who all the heirs and beneficiaries may be.
Check out any safe-deposit boxes for important papers or other valuables.
Collect the decedent’s mail, to make sure you don’t miss anything important.
Cancel credit cards and subscriptions.
Manage “digital assets” (like online accounts, photos and documents stored on line, etc.). You may need to get email access for important information.
Notify the Franchise Tax Board
Notify the Social Security Administration if the decedent was receiving monthly social security benefits.
Prepare the decedent’s final income tax returns.
Important: These are just some of the steps you will have to take. Make sure you are doing all you need as estate representative to take care of the estate and help make sure it gets distributed correctly.
Step 3: Figure out who the heirs and beneficiaries are.
“Heirs” refers to people who have the right to inherit when someone dies without leaving a will (called “dying intestate”). Beneficiaries are the people who inherit according to a will.
Who the beneficiaries or heirs are is usually decided by:
The terms of the will,
State law, if there is no will, or, if there is a problem with the will, or
Other estate planning documents like beneficiary designations (like in retirement accounts), living trusts, or joint tenancy arrangements.
It is not always straightforward to figure out who heirs or beneficiaries are. Even if there is a will, maybe it was not up to date and the new spouse was not included or the will was not changed after a divorce, or a beneficiary named in the will already died, and many other situations. You may need to talk to a lawyer to help you figure out who the heirs or beneficiaries are.
Step 4: Identify and make an inventory of the decedent’s property.
You will need to carefully identify all of the decedent’s property, everything they owned. Then, you will have to make an inventory of everything.
To identify the property, here is some helpful information:
Real property refers to land and things permanently on land, like houses. It also includes things like a real estate lease of at least 10-year term or with an option to buy. If you are not sure if something qualifies as real property, talk to a lawyer.
Personal property is all property that is not real, and it can be tangible or intangible:
Tangible property are things you can touch, like cars, boats, jewelry, furniture, antiques, etc.
Intangible property is abstract. It is a right to be paid money or have some type of power and it is usually laid out in writing. For example, stocks and bonds are intangible and the stock certificate is the document giving you ownership over the stock so you can sell it.
Figure out how the property you found is owned. Was it just owned by the decedent, or did they own it with someone else? Was it bought during a marriage, making it community property, or before the marriage? Maybe it was a mix of both? These questions can be difficult to answer on your own.
Once you have identified all the property and have all the necessary papers, you will have to make a list of assets and debts. It should list all the property the decedent owned when they died. For your list, write down:
Each asset, with a brief description,
The value of the asset as of the date of death
How the decedent owned the asset (like, separately, or in joint tenancy, or as community property, etc.)
What portion of the asset the decedent owned, and the value of the decedent’s portion, and
Whether anyone could file a claim specifically against the asset for repayment of a loan or other debt.
Step 5: Figure out the best transfer process for the assets.
Once you know what property the decedent had when they died, who should get what, and what the value of everything is, you need to figure out how to transfer it. As we have explained, there may be simplified procedures available, or it may have to be done formally in probate court. (Read Simplified Procedures to Transfer an Estate to see if the estate, or parts of it, may qualify for a simplified procedure. If the estate, or parts of it, will not qualify for a simplified procedure, read about Estates That May Need Formal Probate.)
Simplified Procedures to Transfer an Estate
Source: https://www.courts.ca.gov/10440.htm
You 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.
One of the ways to decide if you can use a simplified procedure to transfer property is to figure out whether any of the assets have named beneficiaries. That means that the decedent, when alive, named one or more people as beneficiaries to receive the asset when they died. We listed some examples earlier, but here are some common ones:
Life insurance proceeds,
Retirement accounts, pensions, or annuities
Bank accounts
Property in a living trust
Another important way is to figure out how the property is owned (the type of title ownership). For example:
Was the property owned in joint tenancy? If so, the surviving owner gets the entire property.
Was the property community property with the right of survivorship? If so, the surviving spouse or partner would likely get the entire asset.
o But, it can get complicated. If the asset was community property but there was no explicit right of survivorship, the decedent’s spouse or partner may get the decedent’s half, but it will depend on whether there is a will and the property was divided in other ways. It may also be necessary to make sure that the property is in fact community property and was not somehow changed to separate property through an agreement or in some other way. You may need to talk to a lawyer to sort out these questions.
Was the bank account owned by different people? Or was it to be transferred to one person upon death?
Benefits like social security survivor benefits or benefits as a dependent of a deceased veteran can usually be collected without probate court.
It can be difficult to figure out whether you can use a simplified informal process to transfer property. In addition to assets that already have a designated beneficiary (like a life insurance or a bank account), estates with a value of $166,250 or less may qualify for a non-formal probate case. Also, if you were married to, or in a registered domestic partnership with, the decedent, you may be able to follow a simple process to have your property rights determined.
Generally, though, deciding if you qualify for a simple procedure may be difficult. So talk to a lawyer if you are not sure.
If The Person Who Died Left $166,250 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 $166,250 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 or land. Talk to a lawyer for help to determine whether you may be able to use another simplified procedure to transfer real property.
To use the simplified process for transferring personal property:
First, figure out if the value of all the decedent’s property (the estate) is $166,250 or less. To do this:
Include:
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 $16,625 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 . Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=8461
If the total value of these assets is $166,250 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers. Your court’s self-help center may also have this form or a sample you can use to guide you.
To use to Affidavit process:
Fill out the Affidavit.
Many banks and other institutions have their own affidavit. So, check with them first and ask for one. Your court’s self-help center may also have this form or click for a sample form you may be able to use .
You can list all assets in one affidavit. Or you can do one affidavit for each asset.
Attach (to the affidavit):
A certified copy of the death certificate of the person who died.
Proof that the person who died owned the property (like a bank passbook, storage receipt, stock certificate).
Proof of your identity (like a driver’s license or passport)
An Inventory and Appraisal (form DE-160 ) of all real property owned by the decedent in California. You will need to get this form signed by a probate referee. If there is no real property, then you do not need this form.
Have the affidavit notarized.
Legally, you are not required to have the affidavit notarized BUT many institutions will ask you to, so it is a good idea to notarize it before you try to use it to transfer the property.
If there are other people entitled to inherit the property, they MUST also sign the affidavit.
This shows you all agree that the property listed on your affidavit can be transferred to you.
To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
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 (form DE-221 ) 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.
Estates That May Need Formal Probate
Source: https://www.courts.ca.gov/42629.htm
Any assets that do not qualify for a simple transfer process will likely have to go through formal probate. And, if the dead person’s property is worth more than $166,250, none of the exceptions apply. You must go to court and start a probate case.
To do this, you must file a Petition for Probate (form DE-111 ). This one form has different options, such as:
Petition for Probate of Will and for Letters Testamentary
Petition for Letters of Administration
Talk to a lawyer if you are not sure which option you should choose on this form.
Steps to Take If the Case Belongs in Probate Court
The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:
Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.
NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration (form DE-111 ). The administrator usually is the spouse, domestic partner, or close relative of the dead person.
Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (form DE-111 ). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
The Petition for Probate has different options, like:
Petition for Probate of Will and for Letters Testamentary
Petition for Probate of Will and for Letters of Administration with Will Annexed
Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form. Talk to a lawyer for help with your case.
After a probate case is filed:
The probate clerk sets a hearing date.
The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (form DE-154 ), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
The petitioner must arrange for notice to be published in a newspaper of general circulation.
A court probate examiner reviews the case before the hearing to see if it was done correctly.
Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
The personal representative gathers up the assets and prepares an Inventory and Appraisal (form DE-160 ) to be filed. The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county . (Get more information on probate referees .)
The personal representative provides formal notice to creditors with the Notice of Administration to Creditors (form DE-157 ) and pays the debts.
A final personal income tax return is prepared for the person who died.
The probate court figures out who gets what property.
The personal representative may be required to file aReport of Sale and Petition for Order Confirming Sale of Real Property(form DE-260 ) so that sales of real property are confirmed by the court.
If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
First Steps in Dealing with an Estate When Someone Dies
Step 1: Figure out who will be the estate representative.
The first thing is to figure out who will be the representative of the estate. If there is a will, the representative is the executor named in the will.
If there is no will, it depends whether the case needs to go to probate court or not.
If the estate is small or the estate can pass to other people through simplified procedures informally, then a close relative, often the person who will inherit most of what is left behind can be the informal estate representative.
If the case has to go through a formal probate court case, then the court appoints an administrator to be the estate representative.
If someone dies without a will, the law gives a priority list for who should be the administrator. You can find the full list in Probate Code §8461 . As you may imagine, the surviving spouse or legal domestic partner is at the top of the list, with children as the second category, grandchildren as the third, and so on.
Sometimes, it is not clear who should be estate representative, like, if the will does not name an executor and more than one person has the same priority, or there is a disagreement between heirs as to who should serve, or the person with the higher propriety has a conflict of interest, and many more. Talk to a lawyer if this may be your situation.
If you are the estate representative, keep in mind that:
You must be trustworthy, very organized, and act diligently and responsibly.
You must always stay informed of your responsibilities, keep good records, and communicate with everyone involved.
Until the property goes to the right beneficiary, you are responsible for managing it in everyone’s best interests. This is called a “fiduciary duty.” You have a duty to act responsibly and honestly. If you break your duty, you may end up being personally responsible for any loss to the value of the estate.
Step 2: As estate representative, start gathering information and fulfilling your duties.
As an estate representative, there are a number of preliminary duties you have:
Take possession of the property and safeguard it until everything is distributed and any debts are paid. For example, if the assets are in the decedent’s house, make sure the house is secure, and store any important papers and valuables in a safe place.
Find the will, if there is one.
Get certified copies of the death certificate. You will need them for many of your duties.
Collect any assets and death benefits, if you can, such as bank account funds, life insurance proceeds, annuity benefits, Social Security death and survivor benefits, veteran’s benefits, etc.
Figure out who all the heirs and beneficiaries may be.
Check out any safe-deposit boxes for important papers or other valuables.
Collect the decedent’s mail, to make sure you don’t miss anything important.
Cancel credit cards and subscriptions.
Manage “digital assets” (like online accounts, photos and documents stored on line, etc.). You may need to get email access for important information.
Notify the Franchise Tax Board
Notify the Social Security Administration if the decedent was receiving monthly social security benefits.
Prepare the decedent’s final income tax returns.
Important: These are just some of the steps you will have to take. Make sure you are doing all you need as estate representative to take care of the estate and help make sure it gets distributed correctly.
Step 3: Figure out who the heirs and beneficiaries are.
“Heirs” refers to people who have the right to inherit when someone dies without leaving a will (called “dying intestate”). Beneficiaries are the people who inherit according to a will.
Who the beneficiaries or heirs are is usually decided by:
The terms of the will,
State law, if there is no will, or, if there is a problem with the will, or
Other estate planning documents like beneficiary designations (like in retirement accounts), living trusts, or joint tenancy arrangements.
It is not always straightforward to figure out who heirs or beneficiaries are. Even if there is a will, maybe it was not up to date and the new spouse was not included or the will was not changed after a divorce, or a beneficiary named in the will already died, and many other situations. You may need to talk to a lawyer to help you figure out who the heirs or beneficiaries are.
Step 4: Identify and make an inventory of the decedent’s property.
You will need to carefully identify all of the decedent’s property, everything they owned. Then, you will have to make an inventory of everything.
To identify the property, here is some helpful information:
Real property refers to land and things permanently on land, like houses. It also includes things like a real estate lease of at least 10-year term or with an option to buy. If you are not sure if something qualifies as real property, talk to a lawyer.
Personal property is all property that is not real, and it can be tangible or intangible:
Tangible property are things you can touch, like cars, boats, jewelry, furniture, antiques, etc.
Intangible property is abstract. It is a right to be paid money or have some type of power and it is usually laid out in writing. For example, stocks and bonds are intangible and the stock certificate is the document giving you ownership over the stock so you can sell it.
Figure out how the property you found is owned. Was it just owned by the decedent, or did they own it with someone else? Was it bought during a marriage, making it community property, or before the marriage? Maybe it was a mix of both? These questions can be difficult to answer on your own.
Once you have identified all the property and have all the necessary papers, you will have to make a list of assets and debts. It should list all the property the decedent owned when they died. For your list, write down:
Each asset, with a brief description,
The value of the asset as of the date of death
How the decedent owned the asset (like, separately, or in joint tenancy, or as community property, etc.)
What portion of the asset the decedent owned, and the value of the decedent’s portion, and
Whether anyone could file a claim specifically against the asset for repayment of a loan or other debt.
Step 5: Figure out the best transfer process for the assets.
Once you know what property the decedent had when they died, who should get what, and what the value of everything is, you need to figure out how to transfer it. As we have explained, there may be simplified procedures available, or it may have to be done formally in probate court. (Read Simplified Procedures to Transfer an Estate to see if the estate, or parts of it, may qualify for a simplified procedure. If the estate, or parts of it, will not qualify for a simplified procedure, read about Estates That May Need Formal Probate.)
Simplified Procedures to Transfer an Estate
Source: https://www.courts.ca.gov/10440.htm
You 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.
One of the ways to decide if you can use a simplified procedure to transfer property is to figure out whether any of the assets have named beneficiaries. That means that the decedent, when alive, named one or more people as beneficiaries to receive the asset when they died. We listed some examples earlier, but here are some common ones:
Life insurance proceeds,
Retirement accounts, pensions, or annuities
Bank accounts
Property in a living trust
Another important way is to figure out how the property is owned (the type of title ownership). For example:
Was the property owned in joint tenancy? If so, the surviving owner gets the entire property.
Was the property community property with the right of survivorship? If so, the surviving spouse or partner would likely get the entire asset.
o But, it can get complicated. If the asset was community property but there was no explicit right of survivorship, the decedent’s spouse or partner may get the decedent’s half, but it will depend on whether there is a will and the property was divided in other ways. It may also be necessary to make sure that the property is in fact community property and was not somehow changed to separate property through an agreement or in some other way. You may need to talk to a lawyer to sort out these questions.
Was the bank account owned by different people? Or was it to be transferred to one person upon death?
Benefits like social security survivor benefits or benefits as a dependent of a deceased veteran can usually be collected without probate court.
It can be difficult to figure out whether you can use a simplified informal process to transfer property. In addition to assets that already have a designated beneficiary (like a life insurance or a bank account), estates with a value of $166,250 or less may qualify for a non-formal probate case. Also, if you were married to, or in a registered domestic partnership with, the decedent, you may be able to follow a simple process to have your property rights determined.
Generally, though, deciding if you qualify for a simple procedure may be difficult. So talk to a lawyer if you are not sure.
If The Person Who Died Left $166,250 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 $166,250 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 or land. Talk to a lawyer for help to determine whether you may be able to use another simplified procedure to transfer real property.
To use the simplified process for transferring personal property:
First, figure out if the value of all the decedent’s property (the estate) is $166,250 or less. To do this:
Include:
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 $16,625 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 . Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=8461
If the total value of these assets is $166,250 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers. Your court’s self-help center may also have this form or a sample you can use to guide you.
To use to Affidavit process:
Fill out the Affidavit.
Many banks and other institutions have their own affidavit. So, check with them first and ask for one. Your court’s self-help center may also have this form or click for a sample form you may be able to use .
You can list all assets in one affidavit. Or you can do one affidavit for each asset.
Attach (to the affidavit):
A certified copy of the death certificate of the person who died.
Proof that the person who died owned the property (like a bank passbook, storage receipt, stock certificate).
Proof of your identity (like a driver’s license or passport)
An Inventory and Appraisal (form DE-160 ) of all real property owned by the decedent in California. You will need to get this form signed by a probate referee. If there is no real property, then you do not need this form.
Have the affidavit notarized.
Legally, you are not required to have the affidavit notarized BUT many institutions will ask you to, so it is a good idea to notarize it before you try to use it to transfer the property.
If there are other people entitled to inherit the property, they MUST also sign the affidavit.
This shows you all agree that the property listed on your affidavit can be transferred to you.
To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
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 (form DE-221 ) 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.
Estates That May Need Formal Probate
Source: https://www.courts.ca.gov/42629.htm
Any assets that do not qualify for a simple transfer process will likely have to go through formal probate. And, if the dead person’s property is worth more than $166,250, none of the exceptions apply. You must go to court and start a probate case.
To do this, you must file a Petition for Probate (form DE-111 ). This one form has different options, such as:
Petition for Probate of Will and for Letters Testamentary
Petition for Letters of Administration
Talk to a lawyer if you are not sure which option you should choose on this form.
Steps to Take If the Case Belongs in Probate Court
The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:
Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.
NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration (form DE-111 ). The administrator usually is the spouse, domestic partner, or close relative of the dead person.
Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (form DE-111 ). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
The Petition for Probate has different options, like:
Petition for Probate of Will and for Letters Testamentary
Petition for Probate of Will and for Letters of Administration with Will Annexed
Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form. Talk to a lawyer for help with your case.
After a probate case is filed:
The probate clerk sets a hearing date.
The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (form DE-154 ), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
The petitioner must arrange for notice to be published in a newspaper of general circulation.
A court probate examiner reviews the case before the hearing to see if it was done correctly.
Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
The personal representative gathers up the assets and prepares an Inventory and Appraisal (form DE-160 ) to be filed. The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county . (Get more information on probate referees .)
The personal representative provides formal notice to creditors with the Notice of Administration to Creditors (form DE-157 ) and pays the debts.
A final personal income tax return is prepared for the person who died.
The probate court figures out who gets what property.
The personal representative may be required to file aReport of Sale and Petition for Order Confirming Sale of Real Property(form DE-260 ) so that sales of real property are confirmed by the court.
If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
Don’t Be Shocked By The Fees
First Steps in Dealing with an Estate When Someone Dies
Step 1: Figure out who will be the estate representative.
The first thing is to figure out who will be the representative of the estate. If there is a will, the representative is the executor named in the will.
If there is no will, it depends whether the case needs to go to probate court or not.
If the estate is small or the estate can pass to other people through simplified procedures informally, then a close relative, often the person who will inherit most of what is left behind can be the informal estate representative.
If the case has to go through a formal probate court case, then the court appoints an administrator to be the estate representative.
If someone dies without a will, the law gives a priority list for who should be the administrator. You can find the full list in Probate Code §8461 . As you may imagine, the surviving spouse or legal domestic partner is at the top of the list, with children as the second category, grandchildren as the third, and so on.
Sometimes, it is not clear who should be estate representative, like, if the will does not name an executor and more than one person has the same priority, or there is a disagreement between heirs as to who should serve, or the person with the higher propriety has a conflict of interest, and many more. Talk to a lawyer if this may be your situation.
If you are the estate representative, keep in mind that:
You must be trustworthy, very organized, and act diligently and responsibly.
You must always stay informed of your responsibilities, keep good records, and communicate with everyone involved.
Until the property goes to the right beneficiary, you are responsible for managing it in everyone’s best interests. This is called a “fiduciary duty.” You have a duty to act responsibly and honestly. If you break your duty, you may end up being personally responsible for any loss to the value of the estate.
Step 2: As estate representative, start gathering information and fulfilling your duties.
As an estate representative, there are a number of preliminary duties you have:
Take possession of the property and safeguard it until everything is distributed and any debts are paid. For example, if the assets are in the decedent’s house, make sure the house is secure, and store any important papers and valuables in a safe place.
Find the will, if there is one.
Get certified copies of the death certificate. You will need them for many of your duties.
Collect any assets and death benefits, if you can, such as bank account funds, life insurance proceeds, annuity benefits, Social Security death and survivor benefits, veteran’s benefits, etc.
Figure out who all the heirs and beneficiaries may be.
Check out any safe-deposit boxes for important papers or other valuables.
Collect the decedent’s mail, to make sure you don’t miss anything important.
Cancel credit cards and subscriptions.
Manage “digital assets” (like online accounts, photos and documents stored on line, etc.). You may need to get email access for important information.
Notify the Franchise Tax Board
Notify the Social Security Administration if the decedent was receiving monthly social security benefits.
Prepare the decedent’s final income tax returns.
Important: These are just some of the steps you will have to take. Make sure you are doing all you need as estate representative to take care of the estate and help make sure it gets distributed correctly.
Step 3: Figure out who the heirs and beneficiaries are.
“Heirs” refers to people who have the right to inherit when someone dies without leaving a will (called “dying intestate”). Beneficiaries are the people who inherit according to a will.
Who the beneficiaries or heirs are is usually decided by:
The terms of the will,
State law, if there is no will, or, if there is a problem with the will, or
Other estate planning documents like beneficiary designations (like in retirement accounts), living trusts, or joint tenancy arrangements.
It is not always straightforward to figure out who heirs or beneficiaries are. Even if there is a will, maybe it was not up to date and the new spouse was not included or the will was not changed after a divorce, or a beneficiary named in the will already died, and many other situations. You may need to talk to a lawyer to help you figure out who the heirs or beneficiaries are.
Step 4: Identify and make an inventory of the decedent’s property.
You will need to carefully identify all of the decedent’s property, everything they owned. Then, you will have to make an inventory of everything.
To identify the property, here is some helpful information:
Real property refers to land and things permanently on land, like houses. It also includes things like a real estate lease of at least 10-year term or with an option to buy. If you are not sure if something qualifies as real property, talk to a lawyer.
Personal property is all property that is not real, and it can be tangible or intangible:
Tangible property are things you can touch, like cars, boats, jewelry, furniture, antiques, etc.
Intangible property is abstract. It is a right to be paid money or have some type of power and it is usually laid out in writing. For example, stocks and bonds are intangible and the stock certificate is the document giving you ownership over the stock so you can sell it.
Figure out how the property you found is owned. Was it just owned by the decedent, or did they own it with someone else? Was it bought during a marriage, making it community property, or before the marriage? Maybe it was a mix of both? These questions can be difficult to answer on your own.
Once you have identified all the property and have all the necessary papers, you will have to make a list of assets and debts. It should list all the property the decedent owned when they died. For your list, write down:
Each asset, with a brief description,
The value of the asset as of the date of death
How the decedent owned the asset (like, separately, or in joint tenancy, or as community property, etc.)
What portion of the asset the decedent owned, and the value of the decedent’s portion, and
Whether anyone could file a claim specifically against the asset for repayment of a loan or other debt.
Step 5: Figure out the best transfer process for the assets.
Once you know what property the decedent had when they died, who should get what, and what the value of everything is, you need to figure out how to transfer it. As we have explained, there may be simplified procedures available, or it may have to be done formally in probate court. (Read Simplified Procedures to Transfer an Estate to see if the estate, or parts of it, may qualify for a simplified procedure. If the estate, or parts of it, will not qualify for a simplified procedure, read about Estates That May Need Formal Probate.)
Simplified Procedures to Transfer an Estate
Source: https://www.courts.ca.gov/10440.htm
You 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.
One of the ways to decide if you can use a simplified procedure to transfer property is to figure out whether any of the assets have named beneficiaries. That means that the decedent, when alive, named one or more people as beneficiaries to receive the asset when they died. We listed some examples earlier, but here are some common ones:
Life insurance proceeds,
Retirement accounts, pensions, or annuities
Bank accounts
Property in a living trust
Another important way is to figure out how the property is owned (the type of title ownership). For example:
Was the property owned in joint tenancy? If so, the surviving owner gets the entire property.
Was the property community property with the right of survivorship? If so, the surviving spouse or partner would likely get the entire asset.
o But, it can get complicated. If the asset was community property but there was no explicit right of survivorship, the decedent’s spouse or partner may get the decedent’s half, but it will depend on whether there is a will and the property was divided in other ways. It may also be necessary to make sure that the property is in fact community property and was not somehow changed to separate property through an agreement or in some other way. You may need to talk to a lawyer to sort out these questions.
Was the bank account owned by different people? Or was it to be transferred to one person upon death?
Benefits like social security survivor benefits or benefits as a dependent of a deceased veteran can usually be collected without probate court.
It can be difficult to figure out whether you can use a simplified informal process to transfer property. In addition to assets that already have a designated beneficiary (like a life insurance or a bank account), estates with a value of $166,250 or less may qualify for a non-formal probate case. Also, if you were married to, or in a registered domestic partnership with, the decedent, you may be able to follow a simple process to have your property rights determined.
Generally, though, deciding if you qualify for a simple procedure may be difficult. So talk to a lawyer if you are not sure.
If The Person Who Died Left $166,250 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 $166,250 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 or land. Talk to a lawyer for help to determine whether you may be able to use another simplified procedure to transfer real property.
To use the simplified process for transferring personal property:
First, figure out if the value of all the decedent’s property (the estate) is $166,250 or less. To do this:
Include:
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 $16,625 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 . Source: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=8461
If the total value of these assets is $166,250 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers. Your court’s self-help center may also have this form or a sample you can use to guide you.
To use to Affidavit process:
Fill out the Affidavit.
Many banks and other institutions have their own affidavit. So, check with them first and ask for one. Your court’s self-help center may also have this form or click for a sample form you may be able to use .
You can list all assets in one affidavit. Or you can do one affidavit for each asset.
Attach (to the affidavit):
A certified copy of the death certificate of the person who died.
Proof that the person who died owned the property (like a bank passbook, storage receipt, stock certificate).
Proof of your identity (like a driver’s license or passport)
An Inventory and Appraisal (form DE-160 ) of all real property owned by the decedent in California. You will need to get this form signed by a probate referee. If there is no real property, then you do not need this form.
Have the affidavit notarized.
Legally, you are not required to have the affidavit notarized BUT many institutions will ask you to, so it is a good idea to notarize it before you try to use it to transfer the property.
If there are other people entitled to inherit the property, they MUST also sign the affidavit.
This shows you all agree that the property listed on your affidavit can be transferred to you.
To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
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 (form DE-221 ) 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.
Estates That May Need Formal Probate
Source: https://www.courts.ca.gov/42629.htm
Any assets that do not qualify for a simple transfer process will likely have to go through formal probate. And, if the dead person’s property is worth more than $166,250, none of the exceptions apply. You must go to court and start a probate case.
To do this, you must file a Petition for Probate (form DE-111 ). This one form has different options, such as:
Petition for Probate of Will and for Letters Testamentary
Petition for Letters of Administration
Talk to a lawyer if you are not sure which option you should choose on this form.
Steps to Take If the Case Belongs in Probate Court
The custodian of the will (the person who has the will at the time of the person’s death) must, within 30 days of the person’s death:
Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
If the custodian does not do these things, he or she can be sued for damages caused.
NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration (form DE-111 ). The administrator usually is the spouse, domestic partner, or close relative of the dead person.
Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (form DE-111 ). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
The Petition for Probate has different options, like:
Petition for Probate of Will and for Letters Testamentary
Petition for Probate of Will and for Letters of Administration with Will Annexed
Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form. Talk to a lawyer for help with your case.
After a probate case is filed:
The probate clerk sets a hearing date.
The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice (form DE-154 ), which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
The petitioner must arrange for notice to be published in a newspaper of general circulation.
A court probate examiner reviews the case before the hearing to see if it was done correctly.
Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
The personal representative gathers up the assets and prepares an Inventory and Appraisal (form DE-160 ) to be filed. The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county . (Get more information on probate referees .)
The personal representative provides formal notice to creditors with the Notice of Administration to Creditors (form DE-157 ) and pays the debts.
A final personal income tax return is prepared for the person who died.
The probate court figures out who gets what property.
The personal representative may be required to file aReport of Sale and Petition for Order Confirming Sale of Real Property(form DE-260 ) so that sales of real property are confirmed by the court.
If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.
Don’t Be Shocked By The Fees
