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That depends on the value of the decedent’s estate and possible heirs. If your family member has no real property and personal property valued under $166,250, there is a simplified process you can use to transfer property. For more information see: (Prob. Code §13100) or contact us.
Yes, you must wait 40 days after the decedent’s date of death to transfer property.
You can file a Petition to Determine Succession to Real Property and Personal Property. To use this procedure, the decedent’s estate including real property and optionally, personal property, cannot be valued at more than $166,250. If the decedent resided in this state, the Petition has to be filed in the county where the Decedent resided at the time of death. If the decedent did not reside in the state at the time of death, the Petition should be filed where the property is located (Probate Code). You must wait 40 days from the decedent’s date of death to file the Petition. A hearing will be scheduled for this matter to determine if the real/personal property shall pass to the Petitioner.
You can file a Spousal or Domestic Partner Property Petition. This petition alleges that all or part of the entire estate does not need to be administered as it is passing directly to the surviving spouse. There is no limit to the value of the decedent’s assets for this Petition. If the court finds that the identified assets of the decedent are property passing to the surviving spouse, the court shall issue an order describing the property, determining that the property is passing to the surviving spouse, and determining that no administration is necessary.
*Note* Depending on your circumstances, filing a Petition for Probate instead of a Spousal Property Petition may be a better choice.
Yes. You can file an Affidavit re Real Property of Small Value, Form DE-305. The affidavit cannot be filed until six months have passed since the decedent’s date of death. The affidavit must be filed in the county where the Decedent resided or if the decedent did not reside in the State of California at the time of their death, then the affidavit can be filed where the real property is located.
The signature of the party filing the affidavit must be notarized and an Inventory and Appraisal must be completed and attached. A copy of the decedents will, if one exists, must also be attached. No hearing will be conducted. If properly filed, the Court Clerk will issue a certified copy of the affidavit. You can then file the certified copy shall be filed with the County Recorder’s office. To read the Probate Code regarding this affidavit, click here.
Because of the value of assets, you must file a Petition for Probate, Form DE-111. There are many additional forms you may need to begin the probate process. This Petition can ask the Court for an order appointing a personal representative. If your father left a will, the Petition would also request probate of the Decedent’s will.
While the process can vary from state to state and is often subject to outside factors that can certainly change it, the list below represents a VERY simplified step-by-step description of the process:
The probate process typically takes six to twelve months. However, there are several variables that can cause delays. Some of the issues that can cause delay matters include, but are not limited to:
The complexity of the task and this myriad of possible delaying factors make it all the more imperative that a well-organized and meticulous personal representative be selected who can effectively manage the process and reduce the chances of complications and delays.
Probate is required to:
The cost of probate may be set by state law or by practice and custom in your area. When all the costs are added up – and the costs may include appraisal costs, executor’s fees, court costs, costs for a type of insurance policy known as a “surety bond”, plus legal and accounting fees, probate can easily cost from 3% to 7% of the total estate value, and more. If there is a “Will contest” all bets are off.
Typically, the person named as the deceased’s Personal Representative (a more formal term is “Executor” or “Executrix”) goes to an attorney experienced in probate matters, who then prepares a “Petition” for the court and takes it, along with the Will, and files it with the probate court. The lawyer for the person seeking to have the Will admitted to probate typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the will, and give them an opportunity to file a formal objection to admitting the will to probate. A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. Depending on the state, and sometimes who the named beneficiaries are, how long before the death the Will was signed, whether the Will was prepared by an attorney, who supervised the “execution” of the Will, and/or whether the Will was executed with certain affidavits, it may be necessary to bring in the persons who witnessed the deceased’s signature on the Will. If no objections are received, and everything seems in order, the court approves the petition, appoints the Personal representative, orders that taxes and creditors be paid, and requires the Personal Representative to file reports with the court to assure all the deceased’s property is accounted for and distributed in accordance with the terms and conditions of the Will.
Usually, the laws of the state in which the deceased was last a permanent resident prevail regarding governance of probate issues – covering all of the deceased’s personal property, wherever it was located, and all the deceased’s real property located within the state.
Therefore, probate almost always filed in the last state where the deceased person lived. If the decedent owned out-of-state real property, the laws of the other state can govern (or certainly affect) who inherits it if there is no will. If a will exists and it has been filed for probate in the state of most recent residence of the deceased, it usually must be submitted to probate in the other state(s) of jurisdiction in which the deceased owned real property. That additional probate filing is formally referred to as “ancillary probate”.
Some states require the appointment of a personal representative who is a local resident or the state to administer any in-state property.
If there is no Will, probate is usually required in each state where the real property is situated, in addition to the home state and each individual state can impose it own methodology that controls the distribution of assets.
We have Probate Agents nationwide that can handle property in any state. We will work as a team to aid you through the entire process.
If there is a will, the Personal Representative (sometimes referred to as the “executor” or “executrix”) is usually responsible. If there is no will, an “administrator” is appointed by the court as part of the probate proceeding and that person has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures.
In many states, the probate court has a considerable amount of control over the activities of the Personal Representative and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may take place.
The primary responsibilities of a Personal Representative are to:
It's your right to decline. Even if you opt to serve and decide later that you need to resign. If you do quit before the case is completed, the court may require you to provide proper accounting for the period you served.
If you decline to serve, or accept and resign later, any alternate named in the will is typically appointed by the court. If no alternate representative is named in the will or the named alternate dies or is unwilling to serve, the probate court will typically appoint someone to serve as the personal representative.
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