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.
Type of Title Ownership: Sometimes all or some of a dead person’s property passes directly to the beneficiaries because of how the property is owned. So if the property was owned in joint tenancy, if it was community property with the right of survivorship, if it was a bank account owned by several people, or a bank account that is transferred to someone when the owner dies, then, in general, when the owner of the property dies, the property goes to the survivor. Keep in mind that even in these cases, the survivor may have to take legal steps to clarify his or her ownership of the transferred property.
Type of Contract: Sometimes all or some of a dead person’s property does not need to go through probate to pass to the beneficiaries. This is because this property is a type of contract with named beneficiaries. Examples of this are life insurance that pays benefits to someone else other than the dead person’s estate, retirement benefits, death benefits, and trusts.
If the Person Who Died Left $150,000 or LESS
If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $150,000 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.
Keep in mind, this process CANNOT be used for real property, like a house. If the person left $150,000 or less in real property, including some personal property, you may be able to use a form called Petition to Determine Succession to Real Property (Estates $150,000 or Less). You will have to file the Petition with the court, obtain and file an Inventory and Appraisal, and provide notice of hearing. Talk to a lawyer to make sure you can use this simplified process in your case.
To use the simplified process for transferring personal property
First, figure out if the value of the property (the estate) is worth $150,000 or less.
To do this include:
All 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).
Do not include:
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 not subject to probate 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 that are owned by multiple persons, including the person who died.
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.
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.
Steps to Take If the Case Belongs in Probate Court
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:
Take the original will to the probate court clerk’s office within 30 days. Contact your superior court courthouse to find out where the probate court clerk’s office is located.
Send a copy of the will to the executor (if the executor cannot be found, then the will can be sent to a person named in the will as a beneficiary).
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 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. 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:
Petition for Probate of Will and for Letters Testamentary
Petition for Probate of Will and for Letters of Administration with Will Annexed
Petition for Letters of Administration
Note: To start a probate case you will need more forms than just the Petition for Probate form.
3. After a probate case is filed:
The probate clerk sets a hearing date.
The petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus the surviving family members even if there is a will and they are not named in it. Any person who is interested in the court case may file a Request for Special Notice, which means that they must receive a copy of paperwork filed by the person who is chosen to manage the estate.
The petitioner CANNOT mail the notice. It must be mailed by any other adult who is not a party to the case.
The petitioner must arrange for notice to be published in a newspaper of general circulation. A court probate examiner reviews the case before the hearing to see if it was done correctly. Once all the paperwork has been reviewed by the examiner and corrected, if necessary, the judge decides who to appoint to be in charge as the personal representative of the estate (also called the “administrator” or “executor”).
The personal representative gathers up the assets and prepares an Inventory and Appraisal to be filed. The personal representative usually will also need to contact a probate referee to value the nonmonetary assets. Find the contact information for a probate referee in your county.
The personal representative provides formal notice to creditors with the Notice of Administration to Creditors and pays the debts.
A final personal income tax return is prepared for the person who died.
The probate court figures out who gets what property.
A Report of Sale and Petition for Order Confirming Sale of Real Property is filed with the court so that sales of real property are confirmed by the court.
If the estate earned any money (such as interest or profit in a sale), the personal representative will have to submit a final estate tax return.
The personal representative reports to the court on how the estate was handled. This report is a final plan and accounting. The report is scheduled for hearing so the judge can review how the personal representative handled everything. The judge needs to be satisfied that everything has been properly taken care of.
After filing with the court any required final receipts to show that everyone received their property from the estate, the court discharges the personal representative from his or her duties.