California Probate

When a loved one passes away their estate must be cared for. While some might feel that family can carry out their loved one’s wishes without the involvement of the court, that is not how it works. California law requires court approval before the assets in a decedent’s estate can be legally transferred to others. The probate court in California is the Probate Division of the Superior Court. It has jurisdiction over probate and estate matters. The law related to probate and estate matters is found in the California Probate Code. Cal. Prob. §1 et seq. For example, if a person has a


The process of settling a decedent’s estate begins with filing a Petition for Probate, the death certificate, and the will, if any, with the probate division of the Superior Court in the county where the decedent was domiciled at the time of their death. Cal. Prob. §800. A person’s domicile is the place where their permanent home is. For example, a person could have a home in Chula Vista and a lake house in Elk Grove. While they may spend a lot of time in Elk Grove, which is in Sacramento County, they always return to Chula Vista, which is in San Diego County, and consider it their permanent home.

The administrator, sometimes referred to as the executor or personal representative, is charged with caring for the tasks required to settle the estate. Their duties include identifying and taking control of the assets in the estate such as financial accounts, real estate, and personal property. The administrator must also pay estate debts such credit card bills, utilities, taxes, and loans. The final step is distributing the remaining estate property to the beneficiaries the decedent named in their will. The probate process is overseen by a judge and the administrator must account for the actions taken while settling the estate.

In the absence of a will, the process is similar. The main difference is the determination of how assets are distributed. When someone dies without a will, they would have left no legally enforceable document that directs what they want to happen with their estate. As a result, the laws of intestate succession apply. Cal. Prob. §6400. This means that the decedent’s spouse and children are their primary heirs and are entitled to inherit the entire probate estate, with the spouse inheriting all community property.

Probate Litigation

A difficult part of the probate process is when disputes arise. The emotions associated with the death of a loved one along with complicated family relationships can lead to probate disputes. Family members may challenge the validity of a will, believing that some sort of irregularity occurred during the creation or execution of the will, resulting in them receiving a smaller share than they should have received.

This type of legal challenge is called a will contest. Beneficiaries may disagree on how the administrator has handled an aspect of managing the estate and charge the administrator with breaching their fiduciary duty. In the absence of a will, heirs may fight over who is entitled to inherit the estate or who is entitled to specific assets in the estate. When disputes cannot be resolved by the parties through negotiation, the result may be probate litigation during which the parties argue their cases before a judge.

Small Estate Procedures

California law recognizes that the probate procedure can be burdensome, particularly for small estates. There are two options that allow small estates to avoid the lengthy, expensive probate process and instead reach the asset distribution step much more quickly.

Affidavit for Collection of Personal Property

With the affidavit procedure, a claimant, referred to as the successor of the decedent, can request the transfer or property from the estate without going through probate. Cal. Prob. §13100. This procedure is available if the value of the decedent’s real and personal property does not exceed $166,250 (adjusted periodically) and if 40 days have passed since the death of the decedent. Upon approval of the court, the successor of the defendant will be able to collect the property listed in the affidavit.

Affidavit for Real Property of Small Value

If an estate includes real estate with a value of no more than $61,500 (adjusted periodically), there is a procedure that those entitled to the property can use to collect it. To be entitled to it, the affiant or affiants must be beneficiaries under the decedent’s will or must be entitled to it under intestate succession. All beneficiaries must agree to this.

This option allows for a quick transfer of property. The affidavit must also be recorded with the county clerk in the county where the real estate is located. Cal. Prob. §13200

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