Our practice includes the design, drafting and ongoing maintenance of estate plans, as well as probate litigation and trust administration.


What is a probate?

Probate is a court-supervised process for transferring a deceased person’s assets to the beneficiaries listed in their will. Typically, the executor named in a will would start the process after the death of the person that made the will by filing a petition in court and seeking appointment. The executor would then take charge of all assets, pay debts and, after receiving court approval, distribute the rest of the estate to beneficiaries.

If you were to die intestate (that is, without a will), a relative or other interested person could start the process. In such an instance, the court would appoint an administrator to handle your estate. Once an administrator is appointed, the process would be similar to the process listed above if you had a will.

WHAT ARE COMMON SITUATIONS WHEN PROBATE IS REQUIRED IN CALIFORNIA?

  • The decedent did not leave a Last Will and Testament

  • The decedent left a Last Will and Testament without using a Living Trust

  • Property is not titled in such a way that ownership transfers at death

  • No third-party contracts governing how property is transferred at death

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The probate court can appoint a conservator of the person, a conservator of the estate, or both, depending on the needs of the conservatee.

Simplified Summary Probate

California has some simplified probate procedures for transferring of real estate and personal property of generally small estates when the deceased has not left a will. These procedures are also known as a summary probate. If you can meet all of the various requirements spelled out in the applicable laws, you may use the simplified process to transfer the estate property without a full probate administration. It is recommended that you carefully consider the big picture before using summary probate over a full probate. I say this because you will become liable for the unsecured debts of the decedent if you chose the simplified procedure. Please scroll down for further information.

Side note: While these procedures are useful for the loved ones of the deceased, they are not necessarily recommended for estate planning since there are numerous advantages to proper estate planning that you may miss out on, especially the planning for incapacity. I would be happy to answer your questions about that.

Full Probate

Estates valued over $150,000 in California require a full probate, at least to the extent there is no estate plan or only a will. Full probate can last anywhere from eight to twelve months in California, and attorneys fees are set by statute. This is detailed in the paragraphs below.

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We will navigate California probate proceedings for you.

In the event you or a loved one passes without a comprehensive estate plan, your estate will likely be subject to probate. Probate is the court-supervised administration of a decedent’s estate.  It can be a long and arduous process, generally lasting between 8 and 12 months in California. As probate can be a time-consuming and costly process, compounded with the grief from losing a loved one, it is important to have proper guidance.  We can lead your family through this process with compassion to make it as stress free as possible.

Petition for Probate

We will work with you to address particular issues of importance in a California probate including appointing a personal representative, filing your initial Petition for Probate (Form DE-111, Judicial Council ), and all attachments, including the original Will (if there is one), Notice of Petition to Administer Estate (Form DE-121, Judicial Council ), Duties and Liabilities of Personal Representative (Form DE-147, Judicial Council ), Order for Probate (Form DE-140, Judicial Council ), and Letters (Form DE-150, Judicial Council )

 

What is a probate referee?

The California State Controller appoints probate referees to perform reliable, prompt, and low-cost appraisal of all types of estate assets. The service of a probate referee is required for court resolution of an estate and also available for non-probate trust administration. Prospective probate referees must pass a state-administered test on probate procedures and appraisal principles. The Controller then appoints at least one probate referee per county based on the recommendations of a panel of lawyers and judges who interview qualified candidates. Probate referees complete 15 hours of continuing education each year to stay up-to-date on current appraisal methods.

What if the person that dies has less than $150,000 in assets?

If the estate is worth $150,000 or less, you may not have to go to court, and you may be able to utilize a simplified process to avoid a full probate and 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. The simplified process cannot be used for real property, like a house. If the $150,000 or less includes real property and personal property, you can use a form called Petition to Determine Succession to Real Property after taking some initial steps like filing a Petition and Inventory and Appraisal.

Losing a loved one is a difficult time for all those involved. In addition, California requires that those left behind figure out how to transfer or inherit property from the person who has died if that person did set out a plan in advance prior to their passing. We can navigate California’s probate laws to alleviate some of the difficulties that follow the passing of a loved one. For a greater understanding of theses processes, visit our Resources.

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Smarter planning doesn't have to complicated.

 

We've got your Heggstad Petition covered.

Occasionally a person will have created a Trust and an estate plan but for various reasons not all of his/her assets have been put into the trust (this is called “funding”) prior to that person’s death. Without proper funding, the assets outside of the trust may need to be probated (e.g., real estate held in the name of the decedent).

In such cases, a “Heggstad Petition” can be filed with the court per California Probate Code Section 850. The Petition will request the court to permit the property to be titled into the name of the trust, instead of having to probate that asset, provided there is some evidence that the decedent intended for that property to be in the trust.

 
Without proper funding, the assets outside of the trust may need to be probated.
— The Schlau|Rogers Team
 

If you feel like a Heggstad Petition is potentially in order, we can offer our simple process and approach, along with robust solutions that prioritize security and peace of mind. Together, we can address issues related to probate and the decedent’s failure to properly fund their trust, and create a comprehensive strategy to ensure you’re able to achieve your goals. We will provide assistance with preparing and filing the initial petition(s), providing notice to relevant parties, working with the court, appearing for and attending court hearings, and working through the entire probate process if desired.


What are some alternatives to a full California probate?

There are few alternatives to having to go through a full California probate. If your loved one did not take the time to plan ahead during their lifetime, this doesn’t necessarily mean they have to go through a full probate. Depending on the value of the their personal property and their real property, other options may be available.

Affidavit to Transfer Personal Property Worth Less than $150,000

An affidavit prepared under California Probate Code Section 13100 can be used to transfer any type of personal property that belonged to the decedent, except real estate (real property), as long as the asset is less than $150,000. The affidavit can be used after 40 days from the decedent’s death and it must contain the exact wording from the probate code.

The beneficiaries and/or heirs must all sign the affidavit and all those that sign the affidavit are liable for the decedent’s unsecured debts, up the the amount received.

Assets that pass by beneficiary designations, joint accounts, payable on death accounts, and joint tenancy, are not included in determining the limit of $150,000. The compensation owed to the deceased spouse, community property, motor vehicles, mobile homes, campers and vessels are also not included.

Affidavit to Transfer Real Property of Small Value

When the real estate of the decedent is valued at less than $50,000, an Affidavit to Transfer Real Property Worth Less than $50,000 can be used. According to California Probate Code Section 13200, six months after the death, all of the decedent’s heirs or beneficiaries sign the affidavit, while witnessed by a notary. Also, all of the decedent’s debts must have been paid before filing this form.

The affidavit is filed in the probate court clerk’s office. The probate examiner (a court employee) will review it but a court hearing is not required. Eventually, you will get a court-certified copy of the affidavit back. That is then recorded at the county recorder’s office.

Petition to Determine Succession to Real Property

When the real estate (real property) of the decedent has a gross value of less than $150,000, a Petition to Determine Succession to Real Property can be used as a summary probate procedure. According to California Probate Code Section 13150, 40 days after the death, the petition can be filed. You must obtain an appraisal by the court’s probate referee and all of the decedent’s heirs must sign the petition before filing the petition. In addition, an Inventory and Appraisal must be filed with this petition.

A court hearing is required and proper notice of the hearing date must be provided to the heirs and beneficiaries.

The beneficiaries and/or heirs must all sign the affidavit and all those that sign the affidavit are liable for the decedent’s unsecured debts.

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