You may not need to go to probate court to obtain title to property belonging to a dead person. Figuring out if you have to go to probate court depends on many issues, like the amount of money involved, the type of property involved, and who is claiming the property.One of the ways to decide if you can use a simplified procedure to transfer property is to figure out whether any of the assets have named beneficiaries. That means that the decedent, when alive, named one or more people as beneficiaries to receive the asset when they died. We listed some examples earlier, but here are some common ones:
- Life insurance proceeds,
- Retirement accounts, pensions, or annuities
- Bank accounts
- Property in a living trust
Another important way is to figure out how the property is owned (the type of title ownership). For example:
- Was the property owned in joint tenancy? If so, the surviving owner gets the entire property.
- Was the property community property with the right of survivorship? If so, the surviving spouse or partner would likely get the entire asset.
- But, it can get complicated. If the asset was community property but there was no explicit right of survivorship, the decedent’s spouse or partner may get the decedent’s half, but it will depend on whether there is a will and the property was divided in other ways. It may also be necessary to make sure that the property is in fact community property and was not somehow changed to separate property through an agreement or in some other way. You may need to talk to a lawyer to sort out these questions.
- Was the bank account owned by different people? Or was it to be transferred to one person upon death?
Benefits like social security survivor benefits or benefits as a dependent of a deceased veteran can usually be collected without probate court.
It can be difficult to figure out whether you can use a simplified informal process to transfer property. In addition to assets that already have a designated beneficiary (like a life insurance or a bank account), estates with a value of $166,250 or less may qualify for a non-formal probate case. Also, if you were married to, or in a registered domestic partnership with, the decedent, you may be able to follow a simple process to have your property rights determined. Click on the items below for more information on these situations.
Generally, though, deciding if you qualify for a simple procedure may be difficult. So talk to a lawyer if you are not sure.
If The Person Who Died Left $166,250 or LESS
If you have the legal right to inherit personal property, like money in a bank account or stocks, and the estate is worth $166,250 or less, you may NOT have to go to court. There is a simplified process you can use to transfer the property to your name. The value of the property is based on what it was worth on the date of death —not on what the property is worth now.
- Keep in mind, this process CANNOT be used for real property, like a house or land. Talk to a lawyer for help to determine whether you may be able to use another simplified procedure to transfer real property.
To use the simplified process for transferring personal property:
First, figure out if the value of all the decedent’s property (the estate) is $166,250 or less. To do this:
- All real and personal property.
- All life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits designated to be paid to some other person).
Do not include:
- Cars, boats or mobile homes.
- Real property outside of California.
- Property held in trust, including a living trust.
- Real or personal property that the person who died owned with someone else (joint tenancy).
- Property (community, quasi-community, or separate) that passed directly to the surviving spouse or domestic partner.
- Life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries.
- Unpaid salary or other compensation up to $16,625 owed to the person who died.
- The debts or mortgages of the person who died. (You are not allowed to subtract the debts of the person who died.)
- Bank accounts that are owned by multiple persons, including the person who died..
If the total value of these assets is $166,250 or less and 40 days have passed since the death, you can transfer personal property by writing an affidavit. There is a special form for this that you can get from most banks and lawyers.
To use to Affidavit process:
1. Fill out the Affidavit.
Many banks and other institutions have their own affidavit. So, check with them first and ask for one.
- You can list all assets in one affidavit. Or you can do one affidavit for each asset.
2. Attach (to the affidavit):
- A certified copy of the death certificate of the person who died.
- Proof that the person who died owned the property (like a bank passbook, storage receipt, stock certificate).
- Proof of your identity (like a driver’s license or passport)
- An Inventory and Appraisal of all real property owned by the decedent in California. You will need to get this form signed by a probate referee. If there is no real property, then you do not need this form.
3. Have the affidavit notarized.
Legally, you are not required to have the affidavit notarized BUT many institutions will ask you to, so it is a good idea to notarize it before you try to use it to transfer the property.
4. If there are other people entitled to inherit the property, they MUST also sign the affidavit.
This shows you all agree that the property listed on your affidavit can be transferred to you.
5. To have the property transferred to you, give the affidavit to the person, company, or bank that has the property now.
NOTE: Make sure the case is not already in probate court. If it is, you cannot use the affidavit process unless the personal representative of the estate agrees in writing to let you do so.
If You Were Married to or Were a Registered Domestic Partner of the Person Who Died
You may be able to use a simple form, called a Spousal or Domestic Partner Property Petition to get 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.
If the surviving spouse/partner is legally entitled to all of the property, a more complicated probate procedure may not be required. For example, a couple that was married for decades may only own “community property,” which belongs to the surviving spouse/partner and is confirmed by the court in the spousal property petition case.
from California Courts