What does the word “Probate”mean?
The word “probate” generally refers to what happens to a person’s property when he or she dies.
The purpose of probate is to see that the debts and taxes of the person who has died (the “decedent”) are paid and that the remaining property gets to the rightful owners.
Assets held in the decedent’s name alone are called “probate property” and usually require a court proceeding to determine the beneficiaries. Probate property passes to the persons named in the will, or if there is no will, according to California law on intestate succession. The person who oversees the probate proceeding is called the executor or administrator. A will normally names an executor, usually a close relative. If there is no will, the court will appoint an administrator in a certain order of priority, starting with the surviving spouse, then children, etc.. It takes a minimum of 6 to 9 months to complete a formal probate court proceeding.
Small Estates Can Avoid Formal Probate
Not all estates require a full probate court proceeding, however. There are several ways probate property may be transferred in California, depending on the gross value of the estate and type of property. If the probate property does not exceed $100,000 in gross value, one of California’s summary administration procedures may be used. These procedures are an excellent alternative for estates that qualify. They save time and money and the estates are settled within a matter of weeks. Moreover, several kinds of assets are not counted in determining if the estate qualifies. For instance, you do not count joint tenancy property (real or personal), property that passes outright to a surviving spouse, life insurance proceeds payable to named beneficiaries, bank trust accounts or pay-on-death accounts, mobile homes, automobiles, or property held in a living trust.
Solely-owned personal property such as bank accounts, automobiles, securities, etc., can be transferred to survivors with a simple affidavit and no court involvement is necessary. For real property, a simple form petition may be filed with the probate court for an order transferring title to the survivors. There is a waiting period of 40 days from the date of death before these “summary” procedures may be used. The technical name for this procedure is a Petition to determine succession to real and personal property.
Property That Passes Outright to the Surviving Spouse
Property that passes to a surviving spouse is also excluded from formal probate administration.
There is no waiting period to use this procedure and no limit on the value of the assets that are transferred. In this case a petition can be filed with the court to transfer real estate, stocks, and bank accounts to the surviving spouse in about 5 to 6 weeks.
The technical name for this procedure is a Spousal property petition.
The author of this article, Stan Burman, is a freelance paralegal with over 12 years of experience working on California Probate cases. If you are in need of assistance for a California Probate contact him by e-mail at DivParalgl@yahoo.com for more information. Mr. Burman accepts payments through PayPal and Google Checkout which means that you can pay using most credit cards.
