When an individual dies, the money and property they own must be distributed. Generally, for those assets to be distributed according to California probate law, the estate of the deceased must go through the probate process. In some states, probate is long and exhausting. California, however, offers several legal shortcuts that simplify probate. There are also other estate planning and transfer options that allow some families to avoid probate altogether after a loved one dies.
The Estate Probate Process
When someone dies, California law refers to them as the decedent. Any real or personal property that a decedent owns at the time of death is called their estate. A decedent's estate must be transferred to their family members or to the people they named as beneficiaries.
Often a decedent's estate must pass through the probate process to transfer their assets, but there are a number of other ways assets can be transferred. For example, some types of assets, including bank accounts, life insurance policies and retirement plans, allow the holder to name a beneficiary. When the holder dies, the asset automatically goes to the named beneficiary without passing through probate.
Transfer of Real Estate
Real property can be transferred without going to probate if title to the property is held in joint tenancy by more than one person. The owners have the "right of survivorship" which means that when one joint tenant owner dies, the other inherits their share automatically. This is also true when a married couple hold their home as community property with the right of survivorship.
The surviving spouse automatically gets the deceased person's share. And living trust property is also transferred automatically to named beneficiaries at the grantor's death.
Those parts of an estate that cannot be transferred in these simple ways may have to be transferred in California probate court.
What Is California Probate?
In California, probate is a court-supervised process of transferring the assets in a decedent's estate. It is also the name of the court that supervises that process. Cases are heard in probate court if they involve locating or validating a decedent's will; determining a decedent's heirs and/or beneficiaries; determining the value of the decedent's property; paying the decedent's outstanding debts; or passing ownership interest in the decedent's property to their heirs or beneficiaries.
While probate court judges organize probate cases, they do not have time to administer the details of every estate. Instead, the court appoints a personal representative to manage each estate. That person is termed the executor when there is a will; an administrator where there is no will.
Generally the executor is named in the will while the court appoints a close relative as administrator. That person is charged with finding the heirs and beneficiaries, locating the estate's assets, finding and paying debts, and distributing whatever assets remain to those who have the right to inherit. The court supervises this process, requiring regular reports from the executor or administrator.
Steps in California Probate
A probate administrator or executor has many necessary steps to take as they manage the estate in probate court. A probate case in California can take over a year to resolve and sometimes longer.
An early step is figuring out if the decedent left a will and, if so, whether it is valid. This may involve a will contest, if someone claims that the will was made fraudulently or that the decedent was under undue influence when it was made. If it is determined that there is a valid will, the persons named in the will, the beneficiaries, will receive the property and assets. They may or may not be related by blood to the decedent.
Steps if Valid Will or Intestacy
Probate courts oversee the distribution of a decedent's estate if they left a will or if there is no valid will. If there is no will, or if the will is not valid, the administrator must determine which family members will inherit the decedent's assets. These people are deemed "heirs" in California's probate code. The term "dying intestate" simply means dying without having a valid will.
Once the existence or nonexistence of a valid will has been determined, and beneficiaries and heirs have been located, the personal representative of the decedent must locate, obtain and inventory the property in the decedent's estate; appraise the assets; and pay all taxes and valid debts. Only then can they distribute the remaining assets.
Intestate Succession: Who Is an Heir?
If a person dies intestate, or without a valid will, California's laws of intestate succession set out the priority among surviving family members. Spouses and children are at the top of the list.
Since California is a community property state, half of all property acquired during the marriage belongs to each spouse. Each spouse may also have separate property, that is, property they inherited or brought into the marriage with them. If a spouse dies without a will, the other spouse automatically takes 100 percent of the community property. If there are no children, the surviving spouse also gets 100 percent of the deceased spouse's separate property.
State Laws of Intestate Succession
Under California's laws of intestate succession, the children of a decedent inherit a portion of their parent's separate property. The percent they will inherit depends on whether there is a surviving spouse and whether there are other children. For example, if a married parent dies intestate with only one child, that child takes half of the deceased parent's separate property, and the surviving spouse gets the other half.
If there are multiple children, they receive two-thirds of the decedent's separate property in equal shares, and the spouse receives one-third. If a parent dies without a will and is not married at the time of death, the children receive that parent's entire estate in equal shares.
What happens if a person dies intestate, unmarried and childless? In California, the estate passes to the decedent's parents in equal shares. If there are no surviving parents, surviving grandparents inherit, followed by siblings in equal shares. If the person has no heir at all – no surviving spouse, children, parents, grandparents or siblings – the state of California takes the entire estate.
Is Probate Necessary?
Generally, it is necessary to go through probate in California if the decedent was a resident of the state and owned property in the state. However, it can be avoided if an exemption exists. These exemptions are types of assets that are "non-probate property" or property that may only require a simple probate without court supervision. They include:
- All property and other assets owned by a decedent's living trust.
- Assets held by a married couple as community property with right of survivorship.
- Assets owned jointly by the decedent and another individual if the other individual did not predecease the decedent.
- Assets with a named beneficiary in a "payable on death" or "transfer on death" provision, such as a retirement account.
- Manufactured homes and mobile homes that are on rental land.
- Automobiles and boats registered in California.
- Any remaining assets in the estate if the total value is less than $166,250.
Types of Probate Cases
Even if a decedent's estate must go through probate, some probate procedures are simpler than others. California law describes formal probates, summary probates and ancillary probates. The type of probate the law requires varies according to the location and value of the probate property.
The most expensive type of probate is a formal probate. It also takes the most time, at least nine months and often a year or more. The cost of this type of probate depends on the fair market value of the estate.
The most expedited form of probate in California is called a summary probate. It is cheaper and shorter than a formal probate. Summary probate is available for a decedent's estate that has an aggregate fair market value of less than $166,250, or if any of the other exemptions apply. Sometimes summary probates do not require court supervision at all, depending on the specific circumstances.
Ancillary Probate for Non-Residents
If the decedent was not a California resident, and their estate is being administered in another state, it still may be necessary to open a probate proceeding in California if the decedent owned property in California. This is called an ancillary probate. The probate court in the other state cannot probate real property in California.
Opening Probate in California
A probate proceeding doesn't just open by itself. Someone must step forward to get the probate process started. Generally, if there is a will, the person named as executor of the estate will open probate. If there is no will, a family member usually asks to be appointed administrator and opens probate.
Probate is opened by filing a document called petition for probate in the superior court of the county where the person lived. The filing fee is over $400 with the exact sum depending on the county. Once the petition is filed, the court must schedule an initial hearing in approximately thirty days. The notice of hearing must be published a minimum of three times in a local newspaper.
Filing the Will with the Petition
The will, if there is one, is filed in court at the same time as the petition. Formal written notice of the probate must be given to everyone named in the will, as well as close family members who are potential heirs. Creditors must also be given notice.
If there is a will, it will either be a self-proving will or else it will need to be be proved. A self-proving will is one that contains specific language and an affidavit from every person who witnessed the will. If this is the case, it is not necessary to prove the validity of the will. If not, witnesses to the will signing must complete statements about the signing that the court considers. After that, the court issues Letters Testamentary, giving the executor or administrator authority to act.
Probate Without Court Permission
Most California probate cases are eligible for handling under the Independent Administration of Estates Act. This means that the personal representative can take many actions without getting court permission first. For example, creditors have four months to present claims, but many bills are never presented as claims. These are often paid directly by the personal representative rather than requiring court action.
Certain actions like selling real property from the estate will always need court approval. When all bills and taxes are paid, the personal representative asks the probate court to close the estate. At that point, the estate assets are distributed to heirs or beneficiaries.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.