Posted on June 5, 2022 by Steve Shorr — No Comments ↓

California Probate

Introduction to Probate

Probate takes place in a special probate court to determine how to distribute the estate of someone who died. Probate of a deceased’s estate is necessary when the person who died did not plan his final affairs beyond preparing a Will. You can avoid probate and the expense by estate planning while providing for the immediate transfer of your estate to your designated heirs.

See our webpages on Medi Cal Recovery for Nursing Home costs and trusts.

Probate proceedings are long, cumbersome and expensive. If you have a small estate you can file a petitions with the court stating that the estate is too small and that it should be distributed without court administration to your heirs. A person whose estate exceeds $166k ^{Sweeney Probate Law} * should develop a simple estate plan and avoid probate. ^{(MICHAEL LYNN GABRIEL, Esq.)}

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Estate, gift and inheritance taxes are based on the size of the estate and the relationship of the heirs to the deceased.

For example, assume that a person gives $800,000 at his death to his children. It makes no difference if the $800,000 comes to the children from probate or through a revocable living trust. There is greater cost if the estate is probated rather than passing it through a trust, but the tax rates are the same. The tax is on the money and property distributed after death, not whether or not it comes from probate.

See IRS publications 559 & 950 for lifetime federal unified credit for gift and estate taxes. The limitations & maximums mean that no federal estate taxes will be owed unless an estate exceeds the unused portion of the unified credit (the unified credit amount minus the value of lifetime gifts). ^{(MICHAEL LYNN GABRIEL, Esq.)}

Probate costs include:

court fees,
appraisal fees,
attorney fees and

executor fees. Court costs and appraisal fees are modest: a couple of hundred dollars for an average estate. The real costs are the attorney and executor fees. ^{(Lawyer at large.com)}

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California Probate Process

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AFFIDAVIT #PROCEDURE FOR
REAL [your home & land] PROPERTY OF SMALL VALUE 13200-13210

13200. (a) No sooner than six months from the death of a decedent, a person or persons claiming as successor of the decedent to a particular item of property that is real property may file in the superior court in the county in which the decedent was domiciled at the time of death, or if the decedent was not domiciled in this state at the time of death, then in any county in which real property of the decedent is located, an affidavit in the form

prescribed by the Judicial Council pursuant to Section 1001 stating all of the following:

(1) The name of the decedent.

(2) The date and place of the decedent’s death

. (3) A legal description of the real property and the interest of the decedent therein.

(4) The name and address of each person serving as guardian or conservator of the estate of the decedent at the time of the decedent’s death, so far as known to the affiant.

(5) “The gross value of all real property in the decedent’s estate located in California, as shown by the inventory and appraisal attached to this affidavit, excluding the real property described in Section 13050 of the California Probate Code, does not exceed twenty thousand dollars ($20,000).”

(6) “At least six months have elapsed since the death of the decedent as shown in a certified copy of decedent’s death certificate attached to this affidavit.”

(7) Either of the following, as appropriate:

(A) “No proceeding is now being or has been conducted in California for administration of the decedent’s estate.”

(B) “The decedent’s personal representative has consented in writing to use of the procedure provided by this chapter.”

(8) “Funeral expenses, expenses of last illness, and all unsecured debts of the decedent have been paid.”

(9) “The affiant is the successor of the decedent (as defined in Section 13006 of the Probate Code) and to the decedent’s interest in the described property, and no other person has a superior right to the interest of the decedent in the described property.”

(10) “The affiant declares under penalty of perjury under the law of the State of California that the foregoing is true and correct.”

(b) For each person executing the affidavit, the affidavit shall contain a notary public’s certificate of acknowledgment identifying the person.

(c) There shall be attached to the affidavit an inventory and appraisal of the decedent’s real property in this state, excluding the real property described in Section 13050. The inventory and appraisal of the real property shall be made as provided in Part 3 (commencing with Section 8800) of Division 7. The appraisal shall be made by a probate referee selected by the affiant from those probate referees appointed by the Controller under Section 400 to appraise property in the county where the real property is located. (d) If the affiant claims under the decedent’s will and no estate proceeding is pending or has been conducted in California, a copy of the will shall be attached to the affidavit. (e) A certified copy of the decedent’s death certificate shall be attached to the affidavit. If the decedent’s personal representative has consented to the use of the procedure provided by this chapter, a copy of the consent and of the personal representative’s letters shall be attached to the affidavit. (f) The affiant shall mail a copy of the affidavit and attachments to any person identified in paragraph (4) of subdivision (a).

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