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California estates: when does a case belong in probate court?

On Behalf of | May 25, 2016 | Estate Administration |

Your loved one has passed away. Whether the passing took you by surprise or was expected after a long-term illness, it isn’t easy to deal with their loss. When the only thing you want to do is mourn their death and look to the future, you have to think about their estate. You have to think about probate, something that can be very frustrating and confusing, particularly if this is the first time you have had to deal with the issue.

Probate law in California can be a conundrum. Attaining a lawyer is highly suggested, as they will be able to prepare and file forms and even keep the case out of court, if possible. But what do you do if the case belongs in probate court?

What if my case belongs in probate court?

Let’s look at the California court’s instructions. If a case belongs in probate court, the custodian of the will (person who actually has the will in hand at the time of the person’s death) must take the original will to the probate court’s office. The custodian must also send a copy of the will to the executor. If there is no executor to the will, or they cannot be located, the will must be sent to the beneficiary that is named in the will.

The custodian has thirty days (max) to take these steps, or they can be sued for damages. If there is no will, the court will appoint an administrator, that will be in charge of managing the state during the process. To become an administrator, you have to file a Form DE-111, a “Petition for Letters of Administration”. The administrator for the will is usually either the spouse, partner or relative of the deceased.

A “Petitioner” will start the case in court. After these steps are followed and the probate case has been filed, there will be a hearing date assigned by the clerk. The petitioner at that point is responsible for giving notice to anyone that may be legally obliged to part of the estate. This is true for surviving family members, even if they have not been named in the will.

What if the deceased left $150,000 or less?

If you are legally granted the right to personal property, including stocks or a bank account and the amount is less than $150,000, you may be able to avoid court altogether. The property can be transferred to your name and the value of the property will be worth what it was on the date of the property holder’s death. Property does not include boats, cars, mobile homes or any property outside of California. There are many stipulations as to what is included and what is excluded.

First, the amount of the property has to be assessed and valued so that it is, indeed, worth $150,000 or less. If the total value is that amount or lower, after 40 days have passed since the death of the property holder, you can write an affidavit to have the property transferred to your name. This form can be attained through a lawyer, or a bank.

There are terms to filing the affidavit properly, including not having the petitioner mail the form, assuring that you are, indeed the beneficiary with the right to the property, giving notice and making sure that the case is not already in probate court.

Confused by this most basic outline of California rules and statutes? You are not alone.

The forms and guidelines necessary to go after property or monies that you have inherited can become frustrating and confusing. Only rely on the advice of a lawyer, given based on your individual case.

The best practice is to hire an educated and experienced California probate lawyer that can help you throughout the entire process.