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Overview
When you’ve lost a loved one, the inevitable legal matters can seem difficult and confusing. Learning about probate and taking on some of the bureaucratic tasks yourself can provide clarity, peace of mind, and reduced legal fees.
How to Probate an Estate in California explains how to handle a simple estate and makes clear which tasks you may be able to manage without a lawyer.
Find out how to:
- determine who inherits property
- collect life insurance and other death benefits
- use non-court transfer procedures
- complete and file court paperwork
- pay bills and file taxes, and
- transfer property to heirs and beneficiaries.
Whether you plan to do most of the duties yourself or expect to work with an attorney, How to Probate an Estate in California will save you time and increase your confidence when wrapping up your loved one’s estate.
With Downloadable Forms
We’ll show you where to find all the forms you need online—either on this book’s unique web page or on court websites (details inside).
Product Details
| ISBN-13: | 9781413328424 |
|---|---|
| Publisher: | NOLO |
| Publication date: | 03/30/2021 |
| Edition description: | Twenty Fifth Edition |
| Pages: | 512 |
| Sales rank: | 1,090,011 |
| Product dimensions: | 8.30(w) x 10.80(h) x 1.00(d) |
About the Author
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
Your Legal Companion for Probate 1
1 An Overview 3
What Is Probate? 4
What Is Involved in Settling an Estate? 4
How Long Does It Take to Settle an Estate? 5
What This Book Covers 5
Simple Estate Checklist 6
Important Terms in Probate 6
Debts and Insolvent Estates 9
Estate Taxes 9
Do You Need an Attorney? 10
2 First Steps in Settling an Estate 13
Who Will Act as the Estate Representative? 14
Responsibilities of the Estate Representative 18
Preliminary Duties of the Estate Representative 20
Preliminary Collection of Assets 28
3 Who Are the Heirs and Beneficiaries? 33
Where to Start 34
Reading the Will 37
Compare Schedule of Assets With Property Left in Will 42
When Public Policy Affects the Distribution of Property 44
If There Is No Will 48
Right of Representation and Gifts to Descendants 49
4 What Is the Decedent's Estate? 57
Real Property 58
Personal Property 63
What Establishes Ownership of Property? 63
How Was the Decedent's Property Owned? 64
How to Determine Whether Property Is Community or Separate 67
Actions That Change the Character of Property 69
Property That Is a Mixture of Community and Separate Property 70
Examples of Property Ownership 72
Property Acquired by Couples Before They Moved to California 74
5 Preparing a Schedule of the Assets and Debts 77
Describe Each Asset 78
Value Each Asset (Column A) 78
How to Determine Ownership of Property (Columns B and C) 79
List the Value of the Decedent's Interest (Column D) 80
Determine Whether Property Is a Probate or Nonprobate Asset (Column E) 80
List All Debts 81
Checklist of Property to List on Schedule of Assets 81
Schedule of Assets for a Sample Estate 95
6 How to Identify the Best Transfer Procedure 103
Nonprobate Assets 104
Assets That May Be Subject to Formal Probate 106
Examples of How Assets Are Transferred in Typical Estates 108
Sample Estates 108
7 What About Taxes? 111
Decedent's Final Income Tax Returns 112
Fiduciary Income Tax Returns 114
Other Income Tax Returns 115
Stepped-Up Tax Basis Rules for Inherited Property 116
Federal Estate Tax Return 117
California Inheritance Tax 120
Tax Returns for Estates 121
8 Transferring Title to Real Property 123
Ways to Transfer Real Estate After Death 124
Basic Information on Recording Documents 126
Change in Ownership Statements 127
How to Record Your Document Transferring Title 134
Mortgages 138
Reverse Mortgages 138
9 How to Transfer Securities 139
Documents Required to Transfer Securities 140
The Stock or Bond Power 144
The Affidavit of Domicile 146
The Transmittal Letter 146
How to Sell Securities 146
10 Joint Tenancy Property 149
Where to Start 150
How to Clear Title to Real Property in Joint Tenancy 150
How to Clear Title to Securities Held in Joint Tenancy 153
How to Clear Title to Motor Vehicles and Boats Registered with the DMV and Held in Joint Tenancy 153
How to Clear Title to Joint Tenancy Bank Accounts (and POD Accounts) 155
How to Clear Title to Money Market Funds and Mutual Funds 155
How to Clear Title to U.S. Savings Bonds in Co-Ownership 155
11 Transferring Small Estates 157
Overview of the Transfer Procedures for Small Estates 158
How to Determine Whether You Can Use Small Estate Procedures 159
How to Transfer the Property 161
12 How to Transfer Trust Property 177
Notifying Heirs and Beneficiaries 178
Trust Property 180
Handling Debts and Expenses 180
How to Transfer Property Held in Trusts 181
13 An Overview of the Probate Court Process 185
Do You Really Need a Probate Court Proceeding? 187
Probate Checklist 187
Dealing With the Probate Court 187
Beginning the Probate Process - 193
Taking Care of the Estate During Probate 199
Closing the Estate 205
14 Conducting a Simple Probate Proceeding 207
Step 1 Prepare the Petition for Probate 209
Step 2 Prepare the Certificate of Assignment 226
Step 3 Prepare the Notice of Petition to Administer Estate 226
Step 4 File Your Petition for Probate 234
Step 5 Complete a Proof of Subscribing Witness 235
Step 6 Complete a Proof of Holographic Instrument 239
Step 7 Notify Government Agencies 241
Step 8 Prepare Your Order for Probate 241
Step 9 Obtain and Respond to the Probate Calendar Notes and Hearing 246
Step 10 Prepare the Letters 247
Step 11 Prepare a Duties and Liabilities of Personal Representative (DE-147) 247
Step 12 Prepare the Application Appointing Probate Referee 247
Step 13 Prepare Notice of Proposed Action, If Necessary 252
Step 14 Prepare the Inventory and Appraisal 259
Step 15 Notify Creditors and Deal With Creditors' Claims and Other Debts 269
Step 16 Prepare the Petition for Final Distribution 278
Step 17 Prepare Notice of Hearing 307
Step 18 Prepare Order for Final Distribution 310
Step 19 Transfer the Assets and Obtain Court Receipts 314
Step 20 Request Discharge From Your Duties 317
15 Handling Property That Passes Outright to the Surviving Spouse or Domestic Partner 321
An Overview of These Simplified Procedures 322
Collecting Compensation Owed the Decedent 324
Affidavit for Transferring Community Real Property 325
Survivorship Community Property 325
The Spousal or Domestic Partner Property Petition 330
How to Transfer the Assets to the Surviving Spouse or Partner 348
16 If You Need Expert Help 351
Deciding to Get Help 352
What Kind of Help Do You Need? 352
Working With an Attorney 354
Glossary 357
Appendixes A California Probate Code §§13100-13106 365
Affidavit Procedure for Collection or Transfer of Personal Property 365
B Judicial Council Forms 369
DE-111 Petition for Probate
DE-120 Notice of Hearing
DE-121 Notice of Petition to Administer Estate
DE-121(MA) Attachment to Notice of Petition to Administer Estate
DE-131 Proof of Subscribing Witness
DE-135 Proof of Holographic Instrument
DE-140 Order for Probate
DE-142 Waiver of Bond by Heir or Beneficiary
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-172 Creditor's Claim
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-295 Ex Parte Petition for Final Discharge and Order
DE-305 Affidavit re Real Property of Small Value ($55,425 or Less)
DE-310 Petition to Determine Succession to Real Property (Estates of $166,250 or Less)
DE-315 Order Determining Succession to Real Property (Estates of $166,250 or Less)
C Non-Judicial Council 449
Who Inherits Under the Will?
Schedule of Assets
Notification by Trustee
Affidavit-Death of Transferor (TOD Deed)
Affidavit-Death of joint Tenant
Affidavit for Collection of Personal Property Under California Probate Code 13100-13106 Affidavit-Death of Trustee
Declaration for Collection of Compensation Owed to Deceased Spouse or Domestic Partner
Affidavit-Death of Spouse or Domestic Partner-Survivorship Community Property
Index 471
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