PME Estate Planning, Trust, and Probate Blog

Welcome to the PME LAW Blogs. In this blog, we will focus on PME Estate Planning, Trust, and Probate Blog developments, particularly within the state of California. Nothing in this blog should be construed as legal advice. PMELAW.com is a public website, so communications are not privileged. Copyright Perkins, Mann & Everett (PME LAW) © 2015. All rights reserved.

California Probate Process: Choosing the Appropriate Procedure

Written by Curtis D. Rindlisbacher, Esq.

California law provides rules for formal probate administration that can be used in every estate. The law also provides summary administration procedures for estates that are worth less than $150,000.

After attending to burial and memorial duties following the death of an individual, attention is turned to winding up the affairs of the deceased individual to ensure that his or her final bills and taxes are paid and property is distributed to those legally entitled to receive it.

Choosing the appropriate procedure requires a complete inventory to be completed. Each item of property must be analyzed to determine the following:

  1. How is title held to this item of property? The property might be held solely in the name of the deceased individual. It might be held together with a spouse as joint tenants, community property, or community property with right of survivorship. It might be held together with one or more other owners as tenants in common or in the name of a partnership. Items of property that do not pass by right of survivorship to a co-owner, or that do not pass to a named beneficiary, are subject to California probate procedures.
  2. What is the date of death value of the item of property? Each item of property will need to be appraised. Each county in California has a Probate Referee who is appointed to appraise the estates of deceased individuals for purposes of court proceedings. After the inventory is completed, those items of property that are subject to court probate procedures must be appraised. Cash items are appraised by by the Personal Representative. Non-cash items are appraised by the Probate Referee. The value of each item will be placed on the Inventory and Appraisement.
  3. Is the item of property controlled by a beneficiary designation? Some items of property are controlled by a beneficiary designation and will not be subject to the probate process. Life insurance death benefits, annuities, retirement accounts, and property titled in the name of a trustee of a trust will most often be controlled by a beneficiary designation.

Spousal Set Aside Procedure

The surviving spouse who is entitled to any part of the deceased’s estate can petition the court for an order declaring them the owner of the property to which they are entitled no matter the value of the estate. A written notice is served on all interested parties prior to the court hearing. Assuming there are no objections the court will enter an order that the property listed in the spousal property petition belongs to the surviving spouse. A certified copy of this order is then recorded to transfer record title of any real estate to the surviving spouse.A spouse using this procedure will be responsible for all of the debts of the deceased up to the net value of property received by the surviving spouse from their deceased spouse.

Small Estate Summary Administration Procedures
If the gross value of the estate that is subject to the probate process is less than $150,000, then those entitled to receive each item of property under the deceased individual’s will or under the laws of intestate succession may use summary procedures to collect each item of property. When determining whether the gross value of the estate exceeds $150,000, the following property is excluded from the calcuation:

  1. Property held in joint tenancy;
  2. Property in which the deceased had a life estate or other interest that terminates at the decedent’s death;
  3. Property that passes to a surviving spouse;
  4. Any account that belongs to a surviving party or passes to a pay-on-death beneficiary, or beneficiary under California’s multiple-party account laws;
  5. Any vehicle registered with the DMV;
  6. Any vessell numbered under the Vehicle Code;
  7. Any manufactured home, mobilehome, commercial coach, truck camper, or floating home registered under the Health and Safety Code;
  8. Any amount due to the deceased for services in the Armed Forces of the United States;
  9. Any salary or other compensation owed to the decedent, including compensation for unused vacation, so long as the amount does not exceed $15,000.

Real Estate of Small Value

If an item of real property is valued at less than $50,000, then the successors to the decedent can complete an affidavit and attach the inventory and appraisement and copy of the death certificate and copy of the will, if any, and then file this affidavit with the clerk of the court. A certified copy of this affidavit is then recorded in the county where the real property is located.

Petition for Succession to Real Property

If an item of real property is valued at more than $50,000 but less than $150,000, then the successor to the decedent must submit a petition to the probate court, attaching a copy of the Inventory and Appraisement, and describe the property and those persons entitled to receive it. A notice of hearing must be served on all interested parties. The court will issue its order that the property passess to the successor to the decedent. A certified copy of this order is then recorded to transfer title to the property.

Affidavit to Collect Personal Property

Personal property includes all property other than real estate. The successor to the decedent can collect an item of personal property by signing an affidavit under penalty of perjury declaring that they are the person entitled to the property.

Responsibility for Debts of Deceased

If a successor of the decedent uses any of these summary administration procedures they will be responsible for the debts of the deceased up to the value of the property received.

Formal Probate Administration

If the gross value of the estate that is subject to the probate process exceeds $150,000, then the estate is subject to the formal probate process. This process is commenced by filing a petition with the court asking for the appointment of a Personal Representative and the admission of any will or codicils. A Notice of Administration is published in a newspaper and formal written notice is mailed to each interested person. The court will issue an order admitting the will and codicils, if any, to probate and will formally appoint the Personal Representative. Upon qualification by posting any required bond, the Personal Representative must then prepare the Inventory and Appraisement, have the property appraised, and file the Inventory and Appraisement with the court within four months of their appointment. In addition, the Personal Representative must serve a Notice of Administration on each creditor of the estate and must notify tax authorities of the administration of the estate. As claims are submitted the Personal Representative must review, approve or reject each claim. The Personal Representative must ensure that all required tax matters are dealt with. During the administration of the estate the Peronal Representative is responsible for managing the property of the estate. If sales of assets are required to pay bills and adminitrative expenses, then the Personal Representative must follow the procedures outline in the law for accomplishing those sales. After the claim filing period has expires and all other necessary tasks have been completed the Personal Representative can present a report of administration to the court along with an accounting and request that the court enter an order authorizing distribution of the estate to those entitled to receive it.