Death of a Family Member – what may need to be done

Probate, Spousal Property Petitions, Small Estate Affidavits, Transfer of Jointly Owned Property

How title to your assets are held at the time of your death will dictate what method is necessary to transfer it to another person.  Here is a little information about each of the above named procedures:

ProbateIf a person dies and they own assets that collectively exceed $150,000 in California, a court supervised probate may be necessary unless another options is available.  Assets titled in a trust or jointly with another person are not counted toward this $150,000 amount and those assets pass as the trust provides or to the surviving joint owner.  If assets are owned outside California, then a probate in the other state may be necessary depending on probate statutes in the other state.

The probate process generally takes at least a year before assets are fully distributed to beneficiaries and the cost of a probate where assets are appraised by the probate referee at $1 million will generally run about $45,000.

Many people incorrectly think that if they have a Will, then their estate will not have to go through probate.  A probate is a process where the judge oversees actions taken to make sure assets pass to the beneficiaries named in the will; the probate process is handled by the person nominated to act as the executor, but there can be challenges to the person nominated which the judge will address.  If a person dies and they did not sign a will before their death, then their estate will be handled through an estate administration process where the judge will appoint someone (usually a family member) to act as the administrator and the California probate code will dictate who receives the assets.

Spousal Property Petitions.  A surviving spouse can have community property confirmed to be their property through a special petition to the court.  This petition avoids probate of community property assets and generally takes only 30-45 days to accomplish.

Small Estate Affidavits.  If a person has less than $150,000 in assets titled in their name at the time of their death, an affidavit that is submitted to the entity/person holding the assets (frequently a bank or brokerage company) at least 40 days after the date of death will allow the asset to be transferred to the person entitled to receive it.  This only is available when there will be no probate.

Joint Tenancy Transfers.  If a person owns property in joint tenancy with another, the surviving joint tenant can have that property transferred to them upon presentation of a death certificate or if the asset is real estate, it can be transferred to the surviving upon the signing and recording an affidavit regarding the death.