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How to Probate an Estate in California / Edition 22

How to Probate an Estate in California / Edition 22

by Julia Nissley


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Product Details

ISBN-13: 2901413318295
Publisher: NOLO
Publication date: 03/29/2013
Edition description: Twenty second Edition
Pages: 472
Product dimensions: 6.00(w) x 1.25(h) x 9.00(d)

About the Author

Julia Nissley was the cherished author of How to Probate an Estate in California. She wrote the book while working as a probate administrator with the Los Angeles law firm of Silverberg, Rosen, Leon & Behr. She later opened her own probate-form preparation service, and for the next 25 years helped hundreds of families probate California estates. During that time, she also kept her book meticulously up-to-date. Julia Nissley passed away in late 2015, after finishing her work on the 23rd edition.

Lisa Fialco has a B.A. from Wesleyan University and a law degree from the University of California, Berkeley, Boalt Hall School of Law. Prior to joining Kelley & Farren in 2010, Lisa litigated consumer protection and other matters both for the Federal Trade Commission and in the private sector. She also worked as a law clerk for the Honorable Dana Fabe of the Alaska Supreme Court. Lisa presents public seminars on estate planning topics and served as the co-chair of the Marin County Bar Association Probate & Estate Planning Section for 2014 and 2015.

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What Is Probate?

Many people aren't sure what the term "probate" really means. They think of it only as some long, drawn out, and costly legal formality surrounding a deceased person's affairs. Technically, probate means "proving the will" through a probate court proceeding. A generation ago, virtually every estate had to be reviewed by a judge before it could pass to those who would inherit it. Today there are several ways to transfer property at death, some of which don't require formal court proceedings, so the term is now often used broadly to describe the entire process by which an estate is settled and distributed.

For example, a surviving spouse or domestic partner may receive property outright from the deceased spouse or partner without any probate proceedings at all. Joint tenancy property also escapes the need for formal probate, as does property left in a living (inter vivos) trust and property in a pay-on-death bank account (Totten trust). If an estate consists of property worth less than $100,000, it, too, can be transferred outside of formal probate. Fortunately, the paperwork necessary to actually transfer property to its new owners in the foregoing situations is neither time-consuming nor difficult. We discuss all of these procedures, as well as how to do a formal probate court proceeding.

There is one thing you should understand at the outset: The person who settles an estate usually doesn't have much choice as to which property transfer method to use. That is, whether you are required to use a formal probate or a simpler method to transfer property at death depends on how much (or little) planning the decedent (deceased person) did before death to avoid probate. This is discussed in detail as we go along.

Both formal probate and some of the other nonprobate procedures involve filing papers at a court clerk's office, usually in the county where the decedent resided at the time of death. In larger counties, going to the main courthouse and other government offices in person can be an ordeal. To avoid this, you may settle most simple estates entirely by mail, even if a formal probate court proceeding is required. In other words, most probate matters don't require that you appear in court before a judge. In fact, settling an estate by mail is now the norm in many law offices. We will show you how to do this as we go along.

What Is Involved in Settling an Estate?

Generally, settling an estate is a continuing process which:

  • determines what property is owned by the decedent
  • pays the decedent's debts and taxes, if any, and
  • distributes all property that is left to the appropriate beneficiaries.

When a person dies, she may own several categories of assets. Among these might be household belongings, bank and money market accounts, vehicles, mutual funds, stocks, business interests, and insurance policies, as well as real property. All property owned by the decedent at the time of his or her death, no matter what kind, is called his or her "estate."

To get this property out of the name of the decedent and into the names of the people who inherit it requires a legal bridge. There are several types of legal procedures or bridges to move different kinds of property to their new owners. Some of these are the equivalent of large suspension bridges that will carry a lot of property while others are of much less use and might be more analogous to a footbridge. Lawyers often use the word "administrate" and call this process "administering an estate." in this book we refer to these procedures collectively as "settling an estate."

Most of the decedent's estate will be passed to the persons named in his or her will, or, if there is no will, to certain close relatives according to priorities established by state law (called "intestate succession"). However, to repeat, no matter how property is held, it must cross an estate settlement bridge before those entitled to inherit may legally take possession. The formal probate process is but one of these bridges. some of the other bridges involve community property transfers, clearing title to joint tenancy property, winding up living trusts, and settling very small estates that are exempt from probate. Again, we discuss all of these in detail.

How Long Does It Take to Settle an Estate?

If a formal probate court procedure is required, it usually takes from seven to nine months to complete all the necessary steps, unless you are dealing with a very complicated estate. On the other hand, if the decedent planned his or her estate to avoid probate, or the estate is small, or everything goes to a surviving spouse or domestic partner, then the estate may be settled in a matter of weeks by using some easier nonprobate procedures.

The procedures in this book are only for California estates. Real property and tangible personal property (see Chapter 4 for definitions) located outside of California are not part of a California estate and cannot be transferred following the instructions in this book. To transfer property located outside of California, you will either have to familiarize yourself with that state's rules (these will be similar, but by no means identical to those in effect in California) or hire a lawyer in the state where the property is located.

Table of Contents

I. Introduction
1. An Overview
2. First Steps in Settling an Estate
3. Who Are the Heirs and Beneficiaries?
4. What Is the Decedent’s Estate?
5. Preparing a Schedule of the Assets and Debts
6. How to Identify the Best Transfer Procedure
7. What About Taxes?
8. Transferring Title to Real Property
9. How to Transfer Securities
10. Joint Tenant Property
11. Transferring Small Estates Under $100,000
12. How to Transfer Trust Property and Property Subject to Life Estates
13. An Overview of the Probate Court Process
14. Conducting a Simple Probate Court Proceeding
15. Handling Property That Passes Outright to the Surviving Spouse
16. If You Need Expert Help
Appendix A: California Probate Code §§ 13100–13106
Appendix B: Tear-Out Judicial Council Forms
Appendix C: Tear-Out Non-Judicial Council Forms

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How to Probate an Estate in California 4 out of 5 based on 0 ratings. 1 reviews.
Anonymous More than 1 year ago
The book is indespensible if you're probating an estate in Califonia. But.... $41 for the Nook book, yet only $33 for the paperback? Is B/N freakin' serious?!?!?!?!?