The Probate Process in California

The Probate Process in California

Responsibilities of Executor or Administrator

Responsibilities of Executor or Administrator

Out-of-State Issues During Probate

Out-of-State Issues During Probate

Negligence And/Or Defective Products Causing Death
Negligence And/Or Defective Products Causing Death
Why Should You Select Me For Your California Probate
Why Should You Select Me For Your California Probate

WHAT HAPPENS IF A CHILD INHERITS MONEY IN CALIFORNIA

William Sweeney

In California, probate is handled in the California Superior Courts. If your deceased passed away while residing in Riverside County or San Bernardino County the probate must be filed in the county where the deceased resided at the time of death. Probate is a court procedure that includes transferring a deceased person’s assets to the beneficiaries listed in their will, proving the validity of the will; inventorying and appraising the estate property; paying any debts or taxes (including estate taxes); distributing the property as directed by their will or California probate law if there is no will. Even if there is no will probate is handled in the California Superior Courts.

Whether you should retain a probate lawyer depends upon a number of factors. The use of a probate lawyer greatly increases the odds that the administration will be stress free. If you believe you can go it alone, you should first answer the basic questions below. If you answer “no” to any of them or you are not sure, you will likely need the assistance of a probate lawyer.

    1. Are you familiar with California probate law and local court rules and procedures. If so, you might be able to represent yourself.
    2. Can the deceased person’s assets be transferred outside of probate? The answer to this question depends on how much (if any) probate-avoidance planning the deceased person did before death. Some common examples of assets that don’t need to go through probate are assets are held in joint tenancy and community property with right of survivorship. Assets held in a living trust can also bypass probate. Probate is also unnecessary for assets for which the deceased person named a beneficiary—for example, bank accounts, retirement accounts and life insurance.
    3. Does the estate qualify for California’s simple “small estate” procedures? Small California estates with assets totaling $150,000 (if the deceased died prior to January 1, 2020) or $166,250 (if the deceased died after December 31, 2019) or less may be settled without formal probate proceedings, using relatively simple transfer procedures. This summary form of probate is available regardless of whether the assets are real property or personal property as long as the following are true:

No administration proceedings are pending or have been conducted for the decedent’s estate or, if they have, the personal representative has consented in writing to the summary probate procedure.

You must first compute the gross value of all property the decedent owned when he or she died. The gross value of all real and personal property owned by the decedent in California on the date of death can be no more than the above described threshold amount, as applicable. This figure is the value of the property, not counting any money owed on the property. In other words, you cannot deduct debts while calculating the gross amount.

If the estate qualifies, anyone entitled to inherit property from the decedent, whether as a beneficiary under the will or an heir under intestate succession laws, may settle the estate and obtain title or possession of the property with these simplified probate transfer procedures:

      1. Collection of personal property in small estates by affidavit or declaration under Prob C §§1310013116. In certain circumstances, personal property may be transferred to the decedent’s successors without a formal probate. If the decedent’s estate qualifies under California Pro. Code §§ 13100-13116, the person(s) entitled to the property may present a Small Estate Affidavit, commonly known as an Affidavit for Collection of Personal Property, to the person or institution having custody of the property, requesting that the property be delivered or transferred to the successor. Personal property refers to anything that isn’t real estate. To use this summary procedure:
        1. At least 40 days must elapse since the death of the decedent;
        2. No administrative proceedings are pending or have been conducted for the decedent’s estate
        3. Estate does not exceed $166,250 (as of January 1, 2020) in value. Many types of property are excluded when calculating the value of the estate (see Prob C § 13050 for exclusions).
      2. Succession to real property within California depending on the gross value of all California real property in the estate.
      1. If the decedent died prior to January 1, 2020, if the real property’s gross fair market value does not exceed $50,000 (regardless of the total value of the estate), one can use the affidavit procedure of Prob C §§1320013210(Prob C §13200(a)(5)). The threshold amount after December 31, 2019 is $55,245;
      2. If the decedent died prior to January 1, 2020, if the gross fair market value of the real property is more than $50,000 (the threshold amount after December 31, 2019 is $55,245) and the gross value of the total estate, real and personal, does not exceed the $150,000 or $166,250 threshold amount, less excluded property, a summary court proceeding (Prob C §§1315013158(Prob C §13151)) can be used to determine the succession to real property and additional personal property.
      3. There are several methods of transferring property without probate that apply only to a surviving spouse, registered domestic partner, minor child, or other dependent. These methods include the following:
      4. “Set-Aside Petition.” Beginning January 1, 2020, a petition may be filed requesting an order setting aside the decedent’s estate to the decedent’s surviving spouse and minor children, or one or more of them, if the net value of the decedent’s estate, over and above all liens and encumbrances at the date of death and over and above the value of any probate homestead interest set apart out of the decedent’s estate under Section 6520, does not exceed $85,900, as adjusted periodically in accordance with Section 890. (Statute Amended by Stats. 2019, Ch. 122, Sec. 2. (AB 473) Effective January 1, 2020.)

a. The Set-Aside Petition allows for a simplified procedure, instead of a full probate, if the following requirements are met:

      1. Only the surviving spouse (or domestic partner) or the decedent’s minor children can request that the estate be “set aside” under this procedure.
      2. The petition can only be filed by the executor in the will, if there is one, the surviving spouse, a guardian of a minor child, the personal representative, or a child of the decedent who has since become of legal age to do so.
    1. Passing property to a surviving spouse or registered domestic partner without administration under Prob C §§1350013554 allows transfer between spouses regardless of dollar value of estate without full-blown probate. This procedure is intended to permit a surviving spouse to obtain a judicial determination of property to which that spouse is entitled and to obtain a judicial confirmation of that property to that spouse without other proceedings.
    2. Determining and confirming by court order property passing to a surviving spouse or registered domestic partner under Prob C §§1365013660 is voluntary. It is helpful because although property may automatically pass to a surviving spouse without administration under Prob C §13500, some title companies and others may not clear or transfer title without a court order. Through a Prob C §13650 spousal property petition, surviving spouses request a judicial determination and confirmation of their rights to all or a portion of the property to which they are entitled upon the death of their spouse and obtain a court order verifying the same.
    3. Are family members getting along? If a family member is making noises about suing over the estate, a probate lawyer may be able to help you avoid a court battle.
    4. Do you have plenty of time on your hands, and no time pressure with respect to the estate, and no pressure from creditors or heirs? If so, you might be able to represent yourself.
    5. Is there enough money in the estate to pay debts? If there’s enough money to pay legitimate debts (for example, final income taxes, expenses of the last illness, and funeral costs), with some left over for beneficiaries under the will or state law, you won’t have to figure out which debts to pay. If, however, there may not be enough money in the estate to pay debts and taxes, don’t pay any bills before you get legal advice.
    6. Should I hire a Paralegal? A paralegal CANNOT give you legal advice, represent you in court, or choose your forms for you. Paralegals avoid these activities in order to protect themselves from being charged with the crime “unauthorized practice of law.” The paralegal can only provide information, perform typing, proofread, and prepare documents as the executor instructs, and file them with the court. There are many paralegals that do not file your forms at the court for you.

Oh, and by the way, if you do choose the paralegal and things don’t work out the way they were supposed to because of what the person did or advised, don’t expect your children to be able to hold that person responsible for the losses they’ve suffered.

  1. Will California probate attorney fees be excessive? California attorney probate fees are established by California law. The fees are paid from the assets of the estate upon conclusion of the probate. Only filing fees need to be advanced to proceed with a probate filing. If you believe the attorney probate fees will be excessive, you only need to compare them to other professional fees. They are typically much less. For example, under California probate law, to probate a $1,000,000 estate the attorney probate fee is calculated to be $23,000. This fee is considerably less than fees charged by realtors to market and sell property. No one considers the standard 6% commission on a real estate transaction to be out of line. To sell a $1,000,000 house, in a transaction which might only take 60 to 90 days, costs $60,000. To probate a $1,000,000 estate, which might take 6 to 9 months with several court appearances, the California attorney probate fee of $23,000 is significantly less.

To learn whether you should retain the services of a Riverside County or San Bernardino County probate lawyer, or to gain more information on California probate procedure or requirements, or to discover which strategies are best for your situation, please contact me for a free consultation. You can reach me by phone at 760-989-4820 or through my online contact form.

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