Types of Probate Proceedings

A full probate proceeding is not always necessary, even if the Decedent did not have a trust.  This blog will briefly survey the available procedures for transferring non-trust, non-joint assets of a decedent.

 -FULL PROBATE-

A full probate is necessary if the Decedent’s gross estate is valued at more than $150,000, or s/he had real property in California worth more than $50,000.  The probate process is described in detail in our 8-06-2015 blog.

 -SPOUSAL PROPERTY PETITION-

California provides a relatively quick and easy procedure to transfer property to the surviving spouse of a decedent, called the Spousal Property Petition.  The Petition can only be filed by a surviving spouse, representative/conservator of the surviving spouse, or a surviving domestic partner.

If there is a will, and the spouse or registered domestic partner is the only beneficiary, then all property listed in the will can be transferred to the surviving spouse using the Spousal Petition.  If other beneficiaries are listed in the will, only the property designated as passing to the surviving spouse will be transferred by the Petition. If there is no will, then the surviving spouse can generally only collect the Decedent’s community property by Petition. Keep in mind that this property, assuming there is not a full probate also conducted, will be subject to the Decedent’s creditors.

A Petition is initiated by filing a DE-221, Spousal Property Petition.  A copy of the will and death certificate should be attached.  If there is no will, the spouse will need to prove that the assets listed were community property in nature. This can be a grant deed showing the title to real property as being held as husband and wife, or by a written agreement.  A court hearing will be set, and proper notice will need to be given to all heirs and devisees.

 -AFFIDAVIT OF SMALL ESTATE-

This is applicable if the decedent’s estate was worth less than $150,000 AND s/he had no real property in California, then a full probate is not necessary.  Instead, a notarized Affidavit (or perhaps several, since financial institutions often have their own version they want you to use) can be used.

 To calculate the value of the estate, the heir looks at:

  • All of the decedent’s real and personal property.
  • All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).

 But does not consider the value of the following:

  • Cars, boats or mobile homes.
  • Real property outside of California.
  • Property held in trust, including a living trust.
  • Real or personal property that the person who died owned with someone else (joint tenancy).
  • Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.
  • Life insurance, death benefits or other assets that pass directly to the beneficiaries.
  • Unpaid salary or other compensation up to $5,000 owed to the person who died.
  • The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)
  • Bank accounts owned by multiple persons, including the person who died.

 To use the Affidavit process:

  1. Draft or Fill out the Affidavit.  As stated above, many banks and other institutions have their own affidavit, so check with them first.  Otherwise, the relevant county’s court's self-help center may have a sample you can use.
  2. Attach to the affidavit:
    • A certified copy of the decedent’s death certificate;
    • Proof that the person who died owned the property (like a statement, storage receipt, stock certificate);
    • Proof of your identity;
    • An Inventory and Appraisal (Form DE-160) of any and all real property owned by the decedent in California.  You will need to get this form signed by a probate referee.  If there’s no real property, you don’t need this form.
  3. Have the affidavit notarized. You’re not legally required to have the affidavit notarized, however many institutions will insist on it.
  4. If there are other people entitled to inherit the property, they MUST also sign the affidavit.
  5. Present the affidavit to the person, company, or bank that has the property now.

 -AFFIDAVIT OF REAL PROPERTY OF SMALL VALUE ($50,000 OR LESS)-

If the Decedent owned real property with a gross fair market value not more than $50,000 (regardless of the overall value of the Decedent’s estate), one can use an Affidavit of Real Property of Small Value.  It cannot be filed for six months after the date of the decedent’s death. It’s submitted to the probate court clerk in the county where the property is locate; once signed, the Affidavit gets recorded.