David J Collier

Transferring Deceased Person’s Property in California without Probate through Summary Procedures

So dear old eccentric Uncle Jim has gone to his reward and you learn to your shock that he actually owned more than that ancient, beat-up Chevy. Even more shocking, he left it all to you. How do you go about transferring Uncle Jim’s assets to your name? And is it going to cost more than the value of the estate to do so?

The first thing to look at is whether Uncle Jim had placed his assets into a trust. No. Didn’t think so. He mistakenly thought that trusts were for the “fancy people.” Too bad. A trust would have saved you time and money. Nor did he hold assets in joint tenancy or use a transfer-on-death form. Ah, well.

So transferring the assets will probably require the time consuming, complicated, and expensive court process known as Probate. Wait. There may still be hope. If the value of the estate is small, you can get title to the assets much more quickly and inexpensively through the summary procedures set forth in the California Probate Code.

Most of the summary procedures are limited to estates with small values. For example, estates with values of $150,000 or less can be transferred through summary procedures to any successor. In contrast, estates of any size can be transferred through summary procedures to a spouse entitled to the property. If Uncle Jim had left his worldly goods to his spouse, she could have used a cheaper and quicker summary process. But Aunt Maude passed on years ago.

To determine whether an estate meets the $150,000 value threshold, the gross values of each of the decedent’s non-trust and non-transfer on death assets are counted. There is no offset for mortgages or other debts. So, if Uncle Jim left a residence valued at $300,000 with a mortgage of $200,000 to his favorite niece (that would be you), then you would not be able to use a summary procedure to obtain title to the residence, even though the net value of the residence is only $100,000. But, if the residence was valued at $150,000 at the time of Jim’s death and there were no other assets in Jim’s estate, you would be able to use a summary procedure.

There are three summary procedures in which only an affidavit (sworn statement under penalty of perjury) rather than a court order is required to transfer the decedent’s property. First, successors can collect the decedent’s personal property by affidavit if 40 days have elapsed since the death and the value of his estate is $150,000 or less. Personal property would in your case be Uncle Jim’s gun collection, his old baseball cards (probably valuable), some lovely antique rings of Aunt Maude’s, a small savings account, and a wad of cash under the mattress. Oh, and the Chevy.

Of particular use to many estates is the ability to collect by affidavit a beneficial interest in a mortgage—which in a weird quirk of the law is considered personal property—as long as the decedent’s estate meets the $150,000 value threshold. This means that if Uncle Jim left you the $100,000 mortgage he held on Cousin Jimmy’s ranch, then you can probably get title to the mortgage by recording the appropriate affidavit. For more information on small estate affidavits for personal property click here.

The second affidavit-based summary procedure involves only real property, which is land and anything permanently attached to it, but not movable things like Uncle Jim’s mobile home. A beneficiary can collect a decedent’s California real property by affidavit if the value is $50,000 or less and 6 months have elapsed from the death. So, you can probably collect Uncle Jim’s 1/150,000th interest in the mineral rights to that lot in Palm Desert by affidavit if you wait a few months. Here is a link to the correct form: click_here.

The third affidavit-based summary procedures applies only to a surviving spouse, who can collect the deceased spouse’s real property by affidavit 40 days after the decedent’s death for any size estate. This comes in handy when a surviving spouse wants to sell the family residence, for example. In that case, the title company will probably take care of preparing the affidavit.

Two of the summary procedures require a court hearing, notice to certain relatives, heirs, and beneficiaries, and a court order. One of these court-based summary procedures allows any successor to collect any of the decedent’s real or personal property as long as the value of the decedent’s non-transfer on death real and personal property in California is $150,000 or less. The other applies only to a spouse.

Both the affidavit-based and court-based summary procedures require an appraisal by a probate referee. A list of probate referees can be found at this link. All summary procedures are relatively private, because with summary procedures, unlike full probate, there is no requirement to publish notice of the proceedings in the local newspaper. But, summary procedures carry some risk, because the persons who collect property under any of the summary procedures are liable to the decedent’s creditors up to the amount collected. Luckily, Uncle Jim didn’t believe in debt, so he had no creditors. If he had, and if they knew about the rings, guns, cash, and baseball cards, they could claim the value of those items from you.

The lack of court supervision makes summary procedures relatively quick and cheap. As long as the decedent’s creditors are not lurking, you should consider a summary procedure if possible. For a quick layout of the various summary procedures, please check out this link.

For more information or advice on probate or trust administration, please call me at 707-636-4806.

David J. Collier practices law in Sonoma County in the areas of Real Estate, Wills, Trusts, and Probate. David is responsible for the content of this ADVERTISEMENT. The information in this article is not legal advice. To obtain legal advice you must discuss your unique circumstances with an attorney.

 

David J Collier

Will or Trust… Which is Best for Your Estate Plan?

An estate plan is a set of legal actions you take now to provide for yourself and your loved-ones upon your incapacity or death. Although most of my clients choose a trust as the core document in their estate plan, a will has many benefits. With a will, you can:

  • Plan for contingencies, like an intended beneficiary dying before you
  • “Set it and forget it”—no retitling of assets is required
  • Nominate guardians for your minor children
  • Choose the person that will administer your estate when you die
  • Make specific gifts at your death, like “my purple clock, serial number 11041999, goes to my cousin Wendy”
  • Change your mind at any time during life (if competent).

With a will you can control who gets your assets when you die. If you die without a will or another mechanism for passing your assets, then your assets pass to your “INTESTATE successors.” These people include your spouse, children and descendants, but also could include your parents, cousins, and even in some cases, your spouse’s relatives. You might not even know some of these people! A will solves the problem of intestacy.

But, most clients use a trust as their main estate planning document. Although trusts usually require retitling of assets, a properly written trust has all the benefits of a will, with added benefits of privacy and cheaper and easier post-death administration. For example:

  • Trusts are usually administered privately, but wills are usually administered in probate court.
  • Private administration of a trust is generally much cheaper and easier than probate administration of a will.
  • A properly written trust allows your chosen successor to administer your assets if you become incapacitated before you die.

As you can see, wills and trusts are both important estate planning tools. For more information or to discuss whether a will or trust is appropriate for your estate plan, please call me at 707-636-4806.

David J. Collier practices law in Sonoma County in the areas of Real Estate, Wills, Trusts, and Probate.  David J. Collier is responsible for this content of this advertisement. The information above is not legal advice. To obtain legal advice you must discuss your unique circumstances with an attorney.

David J Collier

Estate Plans are for Peace of Mind

An estate plan is a set of legal actions you take now to provide for yourself and your loved-ones upon your incapacity or death. You may need an estate plan if any of the following apply:

  • You care about who will receive your assets when you die
  • You are remarried and want your children from a prior marriage to inherit some of your assets
  • You have minor children and care about who would take care of them if you die before they become adults
  • Much your property is in 401k, IRA, life insurance, joint tenancy, or other forms that are not controlled by your will or trust
  • You care about who would manage your assets, healthcare, and personal care if you become unable to make decisions for yourself
  • You want your end of life care instructions, like whether to “prolong life” or “not to prolong life,” respected.

One of the biggest reasons you might need an estate plan is to spare your loved-ones the hassle and expense of PROBATE or CONSEVATORSHIP. Probate would be necessary if you die leaving more than $150,000 in directly owned assets. Conservatorship would be necessary if you become unable to take care of yourself and have not already appointed a person to manage your affairs. In both Probate and Conservatorship, a judge appoints someone to handle your personal care or assets. That “someone” must regularly “account” to the court and often must obtain prior court approval for actions necessary to properly handle your affairs. The court’s involvement can cause expense and delay. But, you can avoid Probate and Conservatorship with proper estate planning.

As you can see, an estate plan has many benefits. For more information or to get started on your estate plan, please call me at 707-636-4806.

David J. Collier practices law in Sonoma County in the areas of Real Estate, Wills, Trusts, and Probate. David is responsible for the content of this advertisement. The information in this article is not legal advice. To obtain legal advice you must discuss your unique circumstances with an attorney.