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

Probate, Spousal Property Petitions, Small Estate Affidavits, Joint Tenancy Transfers

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

Probate.  If a person dies owning assets that collectively exceed $166,250, a court supervised probate may be necessary unless other options are available.  Assets titled in a trust or jointly with another person are not counted toward the $166,250 amount and these assets will 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 the laws of that state.  The probate process can take a year or more before assets are fully distributed to your heirs and the fees associated with the probate of a 1M estate would be $46,000.

Many people incorrectly think that if they have a Will their estate will not have to go through probate.  If a person dies with a valid Will (“testate”), assets will pass to the beneficiaries named in the Will, and the probate will be handled by the person nominated to act as executor.  However a judge will supervise the process to see that the Will and laws are followed, and there can be challenges to the person nominated which the judge will address.  If a person dies without a valid Will (“intestate”), assets will pass to the heirs as determined by the Probate Code, and the probate will be handled by the person with priority under the Probate Code.

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 a couple of months to accomplish.

Small Estate Affidavits.  If a person dies with less than $166,250 in assets titled in their individual name, an affidavit will allow the assets to be transferred to the person entitled to receive them.  The affidavit is submitted to the entity holding the assets (frequently a bank or brokerage company) when at least 40 days have passed since the date of death.

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.  If the asset is real property, it can be transferred to the surviving joint tenant upon the signing and recording of an affidavit regarding the death.