California Probate Alternatives

 

Here, we explore the various options available to California probate alternatives. First and foremost, understand that there are often alternatives to probate in every state across the US. It’s important to speak with an attorney before taking action, as probate and probate procedures can often prove to be a maze to lay persons.

Employees at banks and financial institutions will often demand letters of administration or letters testamentary before they are willing to do anything. These are probate documents. They often make people feel like probate is a must. The reality is, these bank employees did not go to law school. They often receive minimal training on probate procedures and defer simply to what they were told by their supervisors. It might make their job easier if you went through probate, but it does not make yours.

If the decedent simply had life insurance, bank accounts, or other accounts on which beneficiaries were named, then probate may not be necessary as the named beneficiaries would have a claim to those items. It would be a simple matter of providing a death certificate to those financial institutions.

Small Estate Probate Transfer

If the value of the estate is under $150,000, and there is no real property in the estate, then a Probate Code 13100 affidavit may suffice. For example, if decedent had $100,000 in a bank account on which no beneficiary is named, and the decedent named an individual as their sole beneficiary in their will. Our firm could prepare and have the individual execute an affidavit directing the bank to release the funds to that individual.

If the value of the estate is under $150,000, and there is no real property in the estate, then a Probate Code 13100 affidavit may suffice. For example, if a loved one had $100,000 in a bank account on which no beneficiary is named, and that was the only asset in the estate, our firm could prepare and have the heirs sign an affidavit directing the bank to release the funds to the heirs. No probate case would need to be filed to get these funds.

When there is real property involved, but the estate is worth less than $150,000, we can generally avoid probate by filing a petition to determine succession to real property. While a petition like this still requires a court hearing, it generally allows us to resolve the process and get the property transferred to the heirs much more quickly and cost effectively than a standard probate case. For estates with real property worth less than $50,000, a much simpler affidavit procedure may suffice which would require no court hearings.

Spousal Property Petition

Oftentimes, a Husband and Wife will own real property as joint tenants or tenants in common. If property is held in joint tenancy, the surviving party can file an affidavit death of joint tenant with the county recorder’s office in order to transfer title into their name alone. However, if your spouse passes away and real property is held as tenants in common, then technically you only hold one half of the property in your name, and you will be unable to sell the property or refinance without first putting it entirely in your own name.

As California is a Community Property state, real property acquired during the marriage is generally considered community property. If the deceased spouse did not name an alternate beneficiary by way of will or trust for their share of the community property, then their share of the community property will pass naturally to the spouse by intestate succession. It would be tedious to have to go through a full blown probate simply to transfer such property into a spouse’s name, so a procedure was established (spousal property petition) through which a spouse could petition the Court to transfer such property into their name. Such a petition is much quicker and easier than probate.

Heggstad Petition

Probate and probate procedures are sometimes even required where a decedent created a trust. It is important, in creating a trust, to set it up and properly fund it. If real property is not transferred into the name of the trust, then the successor trustee will not be able to control it. They will not be able to sell it as it is likely still in the deceased individual’s name.

Sometimes, where property is not placed into the trust, we can file what is called a Heggstad (Probate Code 850) Petition, wherein we petition the court to recognize and put into the trust property that the decedent clearly intended to put into the trust. For example, the decedent may have listed a schedule of trust assets in the back of the trust. Such a procedure is often much easier, quicker, and more cost-effective than going through probate.

For more information about California probate alternatives, schedule a free initial consultation with Werner Law Firm today.