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As your trusted Realtor, it is my obligation to provide the information you need to set you in the right path to further research Real Estate matters . When it comes to legal matters, such as a probate you should consult an attorney that can advice you on your specific situation. The information provided here is meant to give you an overview of the probate process and assist you better communicate with your attorney.
Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died.
To do this, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court. But it is not always easy to tell whether you need to go to court or qualify to use a different procedure.
This section will give you some general information to help you understand what your choices may be, but we still encourage you to talk to a lawyer to get specific answers about your situation. You can usually pay the lawyer’s fees from the property in the case.
Probate is a term that is used in several different ways. Probate can refer to the act of presenting a will to a court officer for filing — such as, to "probate" a will. But in a more general sense, probate refers to the method by which one’s estate is administered and processed through the legal system ( through court) after a person dies.
Matters addressed in a probate court case:
A state court called the probate court oversees the probate process.Because probate courts are state courts and not federal courts, the processes they follow may vary from one state to another. Yet despite their differences, these courts all pretty much follow the same basic processes and steps.
You may or may not need to go to probate court to obtain title to property belonging to a dead person. Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property.
And deciding if probate court is needed may also depend on the how the property is owned (the type of title ownership) or if there is some type of contract with beneficiaries. For example:
To use the simplified process for transferring personal propertyFirst, figure out if the value of the property (the estate) is worth $150,000 or less. To do this:
Do not include:
For a complete list, see California Probate Code section 13050ﾧ.
If the total value of these assets is $150,000 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers.
You may be able to use a simple form, called a Spousal or Domestic Partner Property Petition (Form DE-221) to get a court order that says:
If the surviving spouse/partner is legally entitled to all of the property, a more complicated probate procedure may not be required. For example, a couple that was married for decades may only own “community property,” which belongs to the surviving spouse/partner and is confirmed by the court in the spousal property petition case.
If the dead person’s property is worth more than $150,000, none of the exceptions apply. You must go to court and start a probate case.
To do this, you must file a Petition for Probate (Form DE-111). This one form has different options, such as:
Talk to a lawyer if you are not sure which option you
1. The custodian of the will (the person who has the will at the time of the person’s death) MUST, within 30 days of the person’s death:
If the custodian does not do these things, he or she can be sued for damages caused.
NOTE: If there is no will and a court case is needed, the court will appoint an administrator to manage the estate during the probate process. The person who wants to be the administrator must file a Petition for Letters of Administration (Form DE-111). The administrator usually is the spouse, domestic partner, or close relative of the dead person.
2. Someone, called “the petitioner,” must start a case in court by filing a Petition for Probate (Form DE-111). The case must be filed in the county where the person who died lived (or if the person lived outside of California, in the California county where that person owned property).
The Petition for Probate has different options, like:
Note: To start a probate case you will need more forms than just the Petition for Probate form. Talk to a lawyer for help with your case.
3. After a probate case is filed:
The information provided here was provided by Paul Horn Attorney at Law