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What Factors Determine Whether I Will Need To Go To Probate Court Or Not?


The factors which determine whether you need to go to probate court are many. For a person who is holding an account or annuity, is it the property of the estate or is it conveyed through some other means, such as a trust or a contract? If it’s a trust, then the trust will be administered and will not go through probate. If it is something such as a bank account that has a pay on death designation or a beneficiary designation, it will not go through probate. If it is an item that has a title such as a motor vehicle that has joint owners, then a joint owner may take possession and obtain the title through the DMV directly. If it is real property and the parties were joint tenants with the rights of survivorship or community property with a right of survivorship, that property can simply be taken through an affidavit of death by the joint tenant.

There is an amount of money that, in California, is considered a small estate. Currently, that amount is $150,000. If the total amount of the person’s estate, subject to probate, is under $150,000, then it is not subject to probate. If it’s greater than $150,000, it would be subject to probate. There is a $50,000 limit for real property. Additionally, if it’s community property, a spousal property petition may be involved, which would not require a probate.

If the property or estate does not meet one of the exceptions to stay out of Probate Court, then it must be Probated to transfer ownership.

What Is A Petition For Probate Of Will And For Letters Testamentary?

A petition for probate is a document that is prepared on a California judicial council form, DE-111, which describes the decedent, the estimated value of the estate, and persons entitled to notice. If we are probating a will and seeking letters testamentary, then we attach a copy of the will (the Original Will must be lodged with the Court) as an attachment to the petition for probate. If we are seeking a petition for letters of administration because there was no will, then we would seek letters of administration, as opposed to letters testamentary.

How Does A Probate Case Get Started In California?

A probate case is started by a petitioner petitioning for letters of administration or letters testamentary, or petitioning for letters of special administration. A person files a petition seeking to probate a case. That petition would nominate someone as the administrator or the executor of the estate. The Petitioner is not necessarily the Administrator that is sought; however, it could be. Once that petition is filed and a court date is set, there must be the publication of the petition in a newspaper of general circulation in the county in which the probate case is filed. Finally, all of the persons entitled to notice must be given notice by mail service no less than 15 days prior to the hearing on the petition for probate.

Who Decides Whether The Petition Will Be Approved Or Not?

A judge makes the determination whether or not a petition for probate will be approved. Sometimes, there are competing petitions. The judge either decides who will be the administrator of the estate or makes them go into a mediation, so that they can work it out themselves. Oftentimes, when there are competing petitions, there is an issue with one of the petitioners that would make them ineligible, such is the ability to become bonded. If the Court file examiner finds there is a deficiency in the Petition or Notice was not properly given, they will make notes of such deficiencies for the Court and the Petitioner is expected to respond to the notes at least five days prior to the hearing to allow the Judge to make the decision with all of the deficiencies accounted for.

I Have A Small Estate. Does It Really Have To Be Probated?

If your estate is below $150,000 in total value and, for real property, below $50,000, it does not need to be probated. The law states that you may rely on an affidavit of small estate, which is an affidavit that is filled out by the heirs, instructing whoever is holding the property to make distribution of that property. The probate court provides that if they fail to recognize that and they require you to go to court, they will be the ones paying for the attorney’s fees and the court fees to unnecessarily burden the probate court with a small estate.

What Is A Probate Asset?

A probate asset is any asset that has value which, upon someone’s death, is not disposed of through an instrument that will keep it out of probate. It could be real property or personal property. It’s any property that is not subject to a small estate affidavit, not subject to distribution through a trust, and not subject to distribution due to a beneficiary designation. There are cases where items are left out of a trust and then we must probate the trust or probate the asset to put the asset into the trust so that the trust can then be administered. It’s important, if you intend for an asset not to be probated, that you take the proper steps to ensure that the trust is funded or the beneficiary designations are accurate and up to date.

For more information on Determining The Necessity For Probate, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (916) 915-8866 today.

California Probate Lawyer Peter Cianchetta

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(916) 915-8866

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