How to Probate an Estate in California

by Julia Nissley

Overview

If you need to wrap up the affairs of a deceased family member or friend in California, you can save attorney fees by handling the probate process yourself.

How to Probate an Estate in California supplies all the instructions, explanations and support you need. You may even be able to handle the whole process by mail, without setting foot in the courthouse.

Learn how to:
*read a will
*determine who inherits property if there is no will
*handle probate paperwork
*collect life insurance and other benefits
*transfer community property to a surviving spouse or domestic partner
*pay bills and taxes
*distribute property left through trusts

The completely updated 17th edition explains the latest laws, estate taxes and forms for the current year.

Product Details

ISBN-13:	9781413322194
Publisher:	NOLO
Publication date:	03/31/2016
Edition description:	Twenty third
Pages:	464
Product dimensions:	8.40(w) x 10.80(h) x 1.10(d)

About the Author

Julia Nissley was the cherished author of How to Probate an Estate in California. She wrote the book while working as a probate administrator with the Los Angeles law firm of Silverberg, Rosen, Leon & Behr. She later opened her own probate-form preparation service, and for the next 25 years helped hundreds of families probate California estates. During that time, she also kept her book meticulously up-to-date. Julia Nissley passed away in late 2015, after finishing her work on the 23rd edition.

Lisa Fialco has a B.A. from Wesleyan Universityand a law degree from the Universityof California, Berkeley, Boalt Hall School of Law. Prior to joining Kelley & Farren in 2010, Lisa litigated consumer protection and other matters both for the Federal Trade Commission and in the private sector. She also worked as a law clerk for the Honorable Dana Fabe of the Alaska Supreme Court. Lisa presents public seminars on estate planning topics and served as the co-chair of the Marin County Bar Association Probate & Estate Planning Section for 2014 and 2015.

Read an Excerpt

What Is Probate?

Many people aren't sure what the term "probate" really means. They think of it only as some long, drawn out, and costly legal formality surrounding a deceased person's affairs. Technically, probate means "proving the will" through a probate court proceeding. A generation ago, virtually every estate had to be reviewed by a judge before it could pass to those who would inherit it. Today there are several ways to transfer property at death, some of which don't require formal court proceedings, so the term is now often used broadly to describe the entire process by which an estate is settled and distributed.

For example, a surviving spouse or domestic partner may receive property outright from the deceased spouse or partner without any probate proceedings at all. Joint tenancy property also escapes the need for formal probate, as does property left in a living (inter vivos) trust and property in a pay-on-death bank account (Totten trust). If an estate consists of property worth less than $100,000, it, too, can be transferred outside of formal probate. Fortunately, the paperwork necessary to actually transfer property to its new owners in the foregoing situations is neither time-consuming nor difficult. We discuss all of these procedures, as well as how to do a formal probate court proceeding.

There is one thing you should understand at the outset: The person who settles an estate usually doesn't have much choice as to which property transfer method to use. That is, whether you are required to use a formal probate or a simpler method to transfer property at death depends on how much (or little) planning the decedent (deceased person) did before death to avoid probate. This is discussed in detail as we go along.

Both formal probate and some of the other nonprobate procedures involve filing papers at a court clerk's office, usually in the county where the decedent resided at the time of death. In larger counties, going to the main courthouse and other government offices in person can be an ordeal. To avoid this, you may settle most simple estates entirely by mail, even if a formal probate court proceeding is required. In other words, most probate matters don't require that you appear in court before a judge. In fact, settling an estate by mail is now the norm in many law offices. We will show you how to do this as we go along.

What Is Involved in Settling an Estate?

Generally, settling an estate is a continuing process which:

• determines what property is owned by the decedent
• pays the decedent's debts and taxes, if any, and
• distributes all property that is left to the appropriate beneficiaries.

When a person dies, she may own several categories of assets. Among these might be household belongings, bank and money market accounts, vehicles, mutual funds, stocks, business interests, and insurance policies, as well as real property. All property owned by the decedent at the time of his or her death, no matter what kind, is called his or her "estate."

To get this property out of the name of the decedent and into the names of the people who inherit it requires a legal bridge. There are several types of legal procedures or bridges to move different kinds of property to their new owners. Some of these are the equivalent of large suspension bridges that will carry a lot of property while others are of much less use and might be more analogous to a footbridge. Lawyers often use the word "administrate" and call this process "administering an estate." in this book we refer to these procedures collectively as "settling an estate."

Most of the decedent's estate will be passed to the persons named in his or her will, or, if there is no will, to certain close relatives according to priorities established by state law (called "intestate succession"). However, to repeat, no matter how property is held, it must cross an estate settlement bridge before those entitled to inherit may legally take possession. The formal probate process is but one of these bridges. some of the other bridges involve community property transfers, clearing title to joint tenancy property, winding up living trusts, and settling very small estates that are exempt from probate. Again, we discuss all of these in detail.

How Long Does It Take to Settle an Estate?

If a formal probate court procedure is required, it usually takes from seven to nine months to complete all the necessary steps, unless you are dealing with a very complicated estate. On the other hand, if the decedent planned his or her estate to avoid probate, or the estate is small, or everything goes to a surviving spouse or domestic partner, then the estate may be settled in a matter of weeks by using some easier nonprobate procedures.

The procedures in this book are only for California estates. Real property and tangible personal property (see Chapter 4 for definitions) located outside of California are not part of a California estate and cannot be transferred following the instructions in this book. To transfer property located outside of California, you will either have to familiarize yourself with that state's rules (these will be similar, but by no means identical to those in effect in California) or hire a lawyer in the state where the property is located.

Table of Contents

I. Introduction

1. An Overview

A. What Is Probate?
B. What Is Involved in Settling an Estate?
C. How Long Does It Take to Settle an Estate?
D. What This Book Covers
E. Simple Estate Checklist
F. Important Terms Defined
G. Insolvent Estates
H. Estate Taxes
I. Do You Need an Attorney?


2. First Steps in Settling an Estate

A. Who Should Act as the Estate Representative?
B. Responsibilities of the Estate Representative
C. Specific Duties of the Estate Representative


3. Who Are the Heirs and Beneficiaries?

A. Where to Start
B. How to Read a Will
C. Compare Schedule of Assets With Property Left in Will
D. Who Inherits When the Will Is Ineffective?
E. If There Is No Will
F. The Concept of Right of Representation


4. What Is the Decedent's Estate?

A. Real Property
B. Personal Property
C. What Establishes Ownership of Property?
D. How Was the Decedent's Property Owned?
E. How to Determine Whether Property Is Community or Separate
F. Actions That Change the Character of Property
G. Property That Is a Mixture of Community and Separate Property
H. Examples of Property Ownership
I. Property Acquired by Couples Before They Moved to California


5. Preparing a Schedule of the Assets and Debts

A. Describe Each Asset
B. Value Each Asset (Column A)
C. How to Determine Ownership of Property
D. List the Value of the Decedent's Interest (Column D)
E. Determine Whether Property Is Probate or Non-Probate Asset (Column E)
F. List All Debts
G. Checklist of Property to List on Schedule of As-sets
H. Schedule of Assets for a Sample Estate


6. How to Identify the Best Transfer Procedure

A. Non-Probate Assets
B. Assets That May Be Subject to Formal Pro-bate
C. Examples of How Assets Are Transferred in Typical Estates
D. Sample Estates


7. What About Taxes?

A. Decedent's Final Income Tax Return
B. Fiduciary Income Tax Returns
C. Other Income Tax Returns
D. Stepped-Up Tax Basis Rules for Inherited Property
E. Federal Estate Tax Return
F. California Estate Tax Return
G. California Inheritance Tax
H. Tax Issues for Some Typical Estates


8. Transferring Title to Real Property

A. Ways to Transfer Real Estate After Death
B. Basic Information on Recording Documents
C. Change in Ownership Statements
D. How to Record Your Document Transferring Title
E. Mortgages



9. How to Transfer Securities

A. Documents Required to Transfer Securities
B. The Stock or Bond Power
C. The Affidavit of Domicile
D. The Transmittal Letter
E. How to Sell Securities
F. The Stock Transfer Tax


10. Joint Tenancy Property

A. Where to Start
B. How to Clear Title to Real Property in Joint Tenancy
C. How to Clear Title to Securities Held in Joint Tenancy
D. How to Clear Title to Motor Vehicles and Small Boats Held in Joint
Tenancy
E. How to Clear Title to Joint Tenancy Bank Ac-counts (and Totten Trust
Accounts)
F. How to Clear Title to Money Market Funds and Mutual Funds
G. How to Clear Title to U.S. Savings Bonds in Co-Ownership


11. Transferring Small Estates Under $100,000

A. Overview of the Simplified Transfer Procedure for Small Estates
B. How to Determine Whether You Can Use Summary Procedures
C. How to Transfer the Property


12. How to Transfer Trust Property and Property Subject to Life Estates

A. Notifying Heirs and Beneficiaries
B. Trust Property
C. Handling Debts and Expenses
D. How to Transfer Property Held in Living Trusts
E. Life Tenancy (Life Estate)


13. An Overview of the Probate Court Process

A. Do You Really Need a Probate Court Proceeding?
B. Probate Checklist
C. Dealing With the Probate Court
D. Beginning the Probate Process
E. Taking Care of the Estate During Probate
F. Closing the Estate


14. Conducting a Simple Probate Court Proceeding

Step 1: Prepare the Petition for Probate
Step 2: Prepare the Certificate of Assignment
Step 3: Prepare the Notice of Petition to Administer Estate
Step 4: File Your Petition for Probate
Step 5: Complete the Proof of Subscribing Witness Form
Step 6: Complete a Proof of Holographic Instrument
Step 7: Notify the Director of Health Services
Step 8: Prepare Your Order for Probate
Step 9: Study and Respond to the Calendar Notes
Step 10: Prepare the Letters
Step 11: Prepare the Duties and Liabilities of Personal Representative Form
Step 12: Prepare the Application for Appointment of Probate Referee
Step 13: Prepare Notice of Proposed Action, If Necessary
Step 14: Prepare the Inventory and Appraisal Form
Step 15: Notify Creditors and Deal With Creditor's Claims and Other Debts
Step 16: Prepare the Petition for Final Distribution
Step 17: Prepare Notice of Hearing (Pro-bate)
Step 18: Prepare Order of Final Distribution
Step 19: Transfer the Assets and Obtain Court Receipts
Step 20: Request Discharge From Your Duties

15. Handling Property That Passes Outright to the Surviving Spouse or
Domestic Partner
A. An Overview of These Simplified Procedures
B. Collecting Compensation Owed the Decedent
C. Affidavit for Transferring Community Real Property
D. Survivorship Community Property
E. The Spousal or Domestic Partner Property Petition
F. How to Transfer the Assets to the Surviving Spouse or Partner


16. If You Need Expert Help

A. What Kind of Expert Do You Need?
B. Using a Legal Document Assistant
C. Using a Lawyer

Glossary
Appendix A: California Probate Code §§ 13100-13106
Appendix B: Judicial Council Forms
DE-111 Petition for Probate
DE-120 Notice of Hearing
DE-121 Notice of Petition to Administer Estate
DE-131 Proof of Subscribing Witness
DE-135 Proof of Holographic Instrument
DE-140 Order for Probate
DE-147 Duties and Liabilities of Personal Representative
DE-147S Confidential Supplement to Duties and Liabilities of Personal
Representative
DE-150 Letters
DE-157 Notice of Administration to Creditors
DE-160 Inventory and Appraisal
DE-161 Inventory and Appraisal Attachment
DE-165 Notice of Proposed Action
DE-174 Allowance or Rejection of Creditor's Claim
DE-221 Spousal or Domestic Partner Property Petition
DE-226 Spousal or Domestic Partner Property Order
DE-270 Ex Parte Petition for Authority to Sell Securities and Order
DE-305 Affidavit re Real Property of Small Value ($20,000 or Less)
DE-310 Petition to Determine Succession to Real Property (Estates of $100,000 or Less)
DE-315 Order Determining Succession to Real Property

Appendix C: Non-Judicial Council Forms
Declaration Regarding Property Passing to Decedent's Surviving Spouse or
Registered Domestic Partner Under Probate Code § 13500
Who Inherits Under the Will?
Schedule of Assets
Notification by Trustee
Affidavit-Death of Joint Tenant
Affidavit-Death of Trustee
Affidavit-Death of Spouse
Affidavit-Death of Domestic Partner
Affidavit-Death of Spouse or Domestic Partner-Survivorship Community
Property
Affidavit for Collection of Personal Property Under California Probate
Code §§ 13100-13106
Deed to Real Property
Probate Case Cover Sheet-Certificate of Grounds for Assignment to District (L.A. County)
Application and Order Appointing Probate Referee (L.A. County)
Change in Ownership Statement (Death of Real Property Owner) (L.A. County)
Affidavit or Declaration for Final Discharge and Order (L.A. County)
Preliminary Change of Ownership Report
Index

Editorial Reviews

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