A probate is filed in the Superior Court in the county in which the decedent resided at the time of his death. Probates are typically handled in a separate “probate department” within the superior court, having a separately assigned probate judge with experience handling probate matters and matters involving estates of decedents.
How Are Very Small Estates Handled? Are There Any Simple Options?
California allows a person to transfer up to $150,000 in probate assets through an affidavit procedure.
Other small estate proceedings are available, as well. For instance, if someone owns community property with a surviving spouse, the surviving spouse can initiate a community property petition, which is an alternative to a formal probate. This passes the community property to the surviving spouse and the surviving spouse is obliged to pay all debts of the decedent up to the value of the community property received.
Other small estate set-aside procedures exist for real estate with a limited value, as well.
Generally, if a decedent owned a probate estate with a combined value of assets over $150,000 that were not in trust and without a beneficiary designation, then those assets must be probated through court.
What About Situations In Which a California Decedent Owned Property In Several States including California?
A probate proceeding must be opened in the California county in which the decedent resided at the date of death. This becomes the master probate proceeding.
An “ancillary” probate proceeding is then commenced in each state in which the decedent owned other real estate. If a decedent lived in California and owned a piece of property in his name in the state of Nevada at the time of his death, then a primary probate proceeding is commenced in the county in which he resided in California and an ancillary probate proceeding is commenced in the county of Nevada in which the real property is located. In such situations, if the decedent had organized a trust during his lifetime and transferred title to his California and Nevada real estate to his trust, two probate proceedings could have been avoided.
Note that a California court cannot affect Nevada real estate any more than a Nevada court can affect California real estate. They do not have jurisdiction over property in another state.
Two separate probate proceedings are thus convened, which means that two separate attorney fees are incurred: one for the primary probate and one for the ancillary probate. The personal representative would have to retain a Nevada attorney to conduct the ancillary probate in the state of Nevada.
Who Handles The Probate Process?
Typically, the executor under the will hires an attorney who represents him in court. The attorney does the legal legwork in the probate, including making court appearances, filing pleadings and petitions with the court, and resolving legal issues.
The executor is the person who handles day-to-day tasks, like clearing out the house, handling the sale of the real estate, dealing with the broker, collecting debts, preserving cars, making property tax payments for the real estate, and maintaining insurance payments.
Although it is legally possible to handle a probate without an attorney, people typically realize before the process begins or during the process that they’re in over their heads. They don’t know what they’re doing. At this point, they typically hire an attorney.
The best thing to do is to hire an attorney at the beginning. This way, he doesn’t have to unscramble mistakes.
For more information on Probate Procedure, a free initial consultation is your next best step. Get the information and legal answers you’re seeking by calling (916) 635-0302 today.