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Ordinarily, property that would pass by Will or intestacy would be administered in a probate proceeding. However, in certain circumstances, existing California law permits such property to pass to a devisee of a Will or an heir under intestate succession rules without probate administration under one of the probate avoidance procedures (see my article at /Articles/Avoiding-Probate-In-California.shtml). Should one decide to use a simplified procedure the distributed asset will likely be subject to the Decedent’s creditor claims. In addition, one may be required to return the asset to the Decedent’s personal representative.

On a death prior to April 1, 2022, if the decedent owned property in California not exceeding $166,250 in value, the heirs or beneficiaries may file a simplified procedure with the Superior Court asking for an order to determine their right to take the property without probate administration. On or after April 1, 2022, the amount is $184,500. If property passes outside of probate, it passes outside of the probate creditor satisfaction procedure. To avoid unfairness to creditors, the probate avoidance procedures make the successor personally liable for the decedent’s unsecured debts, up to the value of the property received. In addition, the heirs or beneficiaries may have to return the property to the probate estate.

In probate, a decedent’s estate is used to pay the decedent’s debts (and certain expenses) before it is distributed to devisees or heirs. In addition to the rules establishing personal liability, the probate avoidance procedures also include what I call “property return provisions.” Those are provisions that allow the decedent’s personal representative to require a successor to return transferred property (or its value) to the probate estate for use in paying creditor claims or transferring the property to a person with a superior right. The property return provisions can be applied in two distinctly different situations:

  1. The property is needed to pay the decedent’s unsecured debts.
  2. The property should be transferred to a person with a superior right to the property by Will or intestacy (i.e., the person who took the property is not actually the person who should have received it). The successor is personally liable if another person establishes a superior claim to the property by Will or intestate succession (i.e., the other person, and not the purported successor, was actually the devisee or heir of the property).


Understanding the issues discussed in this article requires the assistance of a qualified probate attorney who can better assess the appropriate course of action. If you are the executor or other nominated person in a Will and you wish to gain more information please contact me for a free consultation. I will spend time with you to answer your questions.

From my office in Southern California, I represent families in all California counties, including Southern California Counties such as Imperial County, Los Angeles County, San Bernardino County, and San Diego County. I also represent parties residing outside of California, including foreign countries, that have probate matters affecting real and/or personal property in California.

Call me toll free at 800-575-9610 or locally at 760-989-4820. I am also available via email or through my online contact form.

Disclaimer: This article is intended to provide general information. The content of this publication is for informational purposes only. Neither this publication nor its author is rendering legal or other professional advice or opinions on specific facts or matters. No attorney-client relationship is created by this advisory, nor by any response to the information herein, unless and until a conflicts review has been conducted by William K. Sweeney, and a written agreement containing all terms of representation has been signed.

Copyright © 2022, William K. Sweeney, Attorney at Law. All rights reserved. Unauthorized use and/or duplication of this material without express and written permission from this article’s author and/or owner is strictly prohibited.