Probate is Not Always Necessary to Transfer Title.

How do you know when probate is required?  Here are some of the circumstances you may encounter:

Transfers of personal property under Probate Code §13100

If the decedent has personal property in his or her name alone valued at less than $100,000, a Declaration under Probate Code §13100 can be used. When determining the value of the estate, you would not use joint tenancy accounts, wages, etc. (see P.C. 13050 for excluded property). You must wait 40 days after the date of death. Attached is a sample Declaration. A certified copy of Death Certificate must be attached to the Declaration. The Declaration is provided to the bank, stock company, etc.

Transfer of real property under Petition to Determine Succession to Real Property

If the decedent’s main asset is real property valued at less than $100,000, a Petition to Determine Succession to Real Property can be filed under P.C. §13151. This is a “one time hearing” type of petition. The court grants it and the Order gets recorded to effectuate the transfer. Attached is a copy of the petition.

Transfer of Real Property of Small Value

If the gross value of all real property in decedent’s estate in California does not exceed $20,000, the Affidavit Re Real Property of Small Value can be used. Probate Code §13200.

Joint Tenancy Title

If title to real property is held as joint tenants, an Affidavit Death of Joint Tenant must be recorded, attaching a certified copy of the Death Certificate. If there is personal property held in joint tenancy, such as stock, the stock transfer agents will have their own forms (Affidavit of Domicile, etc.) to transfer stock.

Spousal Property Petition

If title to the decedent’s property (real and/or personal) is held as “community property”, you would use a Spousal Property Petition under P.C. §13650, which is a “one time hearing” type of petition. A copy of the petition is attached. The petition can be used to determine the property passing to the surviving spouse (i.e., the decedent’s interest), and also to confirm the surviving spouse’s own interest. The value of the estate is not a consideration with this type of petition. The petition must include certain allegations as to community property status (how long married, etc.) and they are outlined in the Probate Rules.

Under certain circumstances, this petition can also be used for decedent’s separate property. For instance, if the decedent has a Will specifically leaving everything to his or her spouse, separate property can be included in the petition.

Probate

A probate is almost always not necessary when there is a surviving spouse. If there is no surviving spouse and the decedent’s estate is worth more than $100,000, you will most likely need to file a probate.

Comments

[Rick]

Could you use section 13100, assuming you were within the threshold, for an out-of-country domiciled decedent to obtain funds in a bank account. The statute doesn't seem to require a California domicile or a California death.

Thanks