Probate Includes:

Court Assistance Regarding the Deceased.

Name Change

Guardianship

Any Other Probate Matter

Wills, Trust, and Estate Planning

Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died. The property that a person leaves behind when they die is called the “decedent’s estate.” The “decedent” is the person who died. Their “estate” is the property they owned when they died.

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. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court.

It is not always easy to tell whether you need to go to court or qualify to use a different procedure. There are a lot of new terms in these types of cases that you should know. Click for a short list of wordsPDF file type icon related to wills and estates and what they mean.

This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case

To find a lawyer, click for help finding your bar association’s lawyer referral service or call 1-707-408-8899.

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”?

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.

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.
  • 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.

    “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.

     

    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.

     

    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

     

    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.
      • 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. Click on the items below for more information on these situations.

    Generally, though, deciding if you qualify for a simple procedure may be difficult. So talk to a lawyer if you are not sure. To find a lawyer, contact your local bar association’s lawyer referral service or call 1-707-408-88999

    Estates That May Need Formal Probate

     
    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

HOW DOES THE COURT MANAGE THE
PROBATE PROCESS?

1.     In the will, a person named as
the Executor will file a petition with the Superior Court asking to be
appointed as Administrator.

2.     If no will exists, persons may petition
to become Personal Representative in a prioritized list that is governed by
the 
Probate Code.

3.     The will also is filed with the
petition, and notices are sent to heirs and/or relatives, informing them of the
date of the hearing.

4.     Even if the will is
uncontested, and there are no objections to the petition, the hearing will
still take place, to resolve any problems that may have arisen. In some cases
this may mean that the will is determined invalid, or perhaps someone other
than the original petitioner is chosen to administer the estate.

5.     Next, the Personal
Representative will inventory the estate’s assets, locate creditors, pay bills,
file tax returns, and manage the estate assets.

6.     Upon completion of all Personal
Representative’s duties, another petition is filed with the court requesting
the distribution of the estate to the beneficiaries. If the petition is granted,
the assets are distributed to the beneficiaries and final tax returns are
filed.

 

WHAT ARE THE COSTS OF PROBATE?

California probate lawyers charge statutory fees, as governed by California Probate Code §10810. This code sets the amount, but higher fees can be ordered by in more complicated cases. Probate is
generally more expensive than setting up a California Trust.

The Probate Code sets the fees that can be charged by a probate attorney as
follows:

·         4% of the first $100,000 of the estate;

·         3% of the next $100,000;

·         2% of the next $800,000;

·         1% of the next $9,000,000;

·         and 1/2 percent of the next
$15,000,000.

·         Estates larger than $25,000,000
are subject to a court-determined fee for the amount that is greater than
$25,000,000

Unlike
trust, any will may be subject to
probate in California.

 

HOW IS THE VALUE OF THE ESTATE
DETERMINED?

Generally,
the estate is determined by performing an inventory. Debts are excluded when
determining attorney’s fees. For example, if a house in the estate is appraised
at $2,000,000 but has a mortgage of $1,200,000, it will still be valued as a
$2,000,000 asset for the purpose of calculating attorney’s fees.

 

HOW IS THE ESTATE APPRAISED?

Probate
referees, appointed by the State Controller, appraise estates. Probate referees
determine fair market value for the assets. That fair market value includes
mortgages and other debts, which can result in an appraisal of the property
that is higher than the equity that the deceased owned in the property. Probate
referees are paid a fee based on 0.1% of the appraised assets.

The
fee charged to file a probate petition is $435.00, but may be higher in some
counties. On top of the statutory fees, there are also appraisal fees,
publication costs, and other miscellaneous fees. A typical estate might incur
$1,000.00 to $3,000.00 in court costs and other mandated fees.

 

WHAT ARE THE ADVANTAGES OF
PROBATE?

1.     A judge controls the
proceedings and can resolve disputes between heirs or disputes that may arise
between heirs and the Personal Representative.

2.     Any creditors notified of the
probate are required to submit their claims against the estate within a
four-month period.

3.     The Personal Representative is
generally required to prepare an accounting and report of their activities.

 

WHAT ARE THE DISADVANTAGES OF
PROBATE?

1.     Higher cost. The cost of administration of
living trust for a similar estate is
usually much lower.

2.     Slower resolution. Moving an estate through
probate will take longer than administering a trust.

“I can highly recommend Sonoma County LDA.
They have a lot of experience and knows their way around the forms regarding to
guardianship in a way that is really reassuring. They have a great
interpersonal skill in dealing with these delicate topics. They were very
patient when we did not understand the forms we brought to them, they truly
wanted to make sure we understood the forms we brought in and explained them in
a very calm manner.”

-The Romeo Family

DISCLOSURE:

SB1418 authorizes non-lawyers to prepare legal documents for people doing their own legal tasks. Effective January 1, 2000, these non-lawyers, called Legal Document Assistants, may:

  • Distribute to their customers legal materials that have been published or approved by a lawyer
  • Prepare the customers’ legal documents under the direction of their customers
  • File the customers’ legal documents in the appropriate courts

 

To qualify as a Legal Document Assistant, a person must:

  • Register in the County in which they work
  • Post a $25,000 Bond
  • Establish that he or she has a minimum level of experience and/or education

Every Legal Document Assistant is required to use a Contract. The Contract will provide appropriate notice to the Legal Document Assistant’s customers regarding the scope of the customers’ rights and the Legal Document Assistant’s duties. This Bill was passed for your protection. When you look to hire a Legal Document Assistant after January 1, 2000 be sure to ask if he or she is bonded and registered.  

 

Who are Legal Document Assistants? (LDA)

Legal Document Assistants were once commonly known as Independent Paralegals. However, as of January 1st, 2000, only those Paralegals working directly for attorneys may now be referred to as Paralegals. Those formerly known as Independent Paralegals are now officially known as Legal Document Assistants (LDAs). LDAs often have the same educational background as a paralegal and are REQUIRED by law to be registered and bonded in the county in which they have their principal place of business. Please Note:

  • A Legal Document Assistant is NOT a Lawyer.
  • By law, they cannot give you legal advice or represent you in the courts in any matter.
  • If you need to consult with an attorney, your LDA will be able to provide you with a referral.
  • We always suggest that you be sure to ask the LDA you are thinking of retaining if he or she is bonded and registered in their county. This is for your protection. Registration and bond information are available at the Sonoma County Clerks Office. If a person is acting as an LDA but is not registered and bonded, then they are operating illegally in California. The Bond is for your protection!