If you are overseeing the administration an estate in California you undoubtedly want to avoid the need for formal probate. Fortunately, some estates can avoid formal probate. You should always consult with an experienced probate attorney before deciding that an estate is not required to go through probate; however, the Los Angeles probate attorneys at Schomer Law Group, APC explain the basic requirements for avoiding formal probate in California.
Probate Basics
Probate is the legal process that is often required following the death of an individual. The formal probate process is often a costly endeavor, both in terms of time and money. Because creditors of the estate must be given four months within which to file a claim, it generally takes a minimum of six months for even a relatively modest estate to get through the probate process. Furthermore, the expenses involved in probating an estate can significantly diminish the value of the estate that is ultimately passed down to loved ones.
California Alternatives to Formal Probate
Fortunately, the time and expense of formal probate is not always required to distribute estate assets of a decedent in California. As a general guideline, the following situations may allow for assets to be distributed without going through probate:
- The assets are non-probate assets. Not all assets are required to go through probate. Non-probate assets bypass probate and may be distributed immediately following the death of the owner. Examples of non-probate assets include:
- Assets held in a trust
- Proceeds of a life insurance policy
- Certain types of jointly owned property (if titled with rights of survivorship)
- Accounts designated as “Payable on Death (POD)” or “Transfer on Death (TOD)”
- Many retirement accounts.
- Small estate if the estate consists of personal property only valued at less than $166,250 (as of 2022). When an estate does not include real property, such as a house, the assets that make up the estate may be able to be distributed to the new owners using an affidavit. The value of the estate is determined as of the date of death, not the value today. In addition, you must have the legal right to inherit the assets and you must wait 40 days after the decedent’s death before initiating the transfer of assets.
- Small estate if the estate consists of personal property and real property valued at $166,250 or less (as of 2022). If the estate includes both personal and real property, but is worth less than $166,250, you may be able to use a form entitled Petition to Determine Succession to Real Property. You will have to file the Petition with the court, obtain and file an Inventory and Appraisal, and provide notice of a hearing. You are also required to have the legal right to inherit the property and must also wait 40 days after the decedent’s death before initiating this simplified probate procedure.
- If you are the spouse or domestic partner of the decedent. If you are the decedent’s spouse or domestic partner, you may be able to file a Spousal or Domestic Partner Property Petition which will result in a court order that says:
- What your share of the community property is; and
- What part of your deceased spouse or partner’s share of community and separate property belongs to you.
Contact Los Angeles Probate Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about administering an estate or determining if an estate requires formal probate, contact the experienced Los Angeles probate attorneys at Schomer Law Group APCby calling (310) 337-7696 to schedule an appointment.
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