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On this page we discuss probate, steps to avoid it and give an example of a declaration for small estates that avoids the need for court probate.
Probate is a court supervised process which is required of many estates after death. It is the means by which property is passed on to one's heirs. You may have noticed that there are a number of attorneys advertising ways to avoid probate. If you don't know what that is about, consider the following:
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Probate refers to a court proceeding that requires the filing of numerous forms and documents and is meticulously supervised by the courts. The probate of an estate will usually last more than six months and may take years. During that time, property you owned together will be tied up and you may have restricted or no access to important funds and accounts. The sale of property may be complicated by the need for court approval of the terms of sale.
Both the executor and the attorney for the estate are entitled to be paid fees for their work during a probate. While their fees are regulated by the state, they can be considerable and unnecessary.
For example, the fees in an uncomplicated estate that is worth $150,000 will be about $4,150 for the executor and the same amount for the attorney.
The following table sets forth the statutory fee schedule for the Executor of the estate and the attorney for the estate.
Probate Fees (for Administrator and Attorney, each) |
Size of Estate (Gross Value) |
|---|---|
| 4 % of first | $100,000 |
| 3 % of next | $100,000 |
| 2 % of next | $900,000 |
| 1 % of next | $15 million |
A fairly modest estate of a home, automobile, furniture and IRA or pension can easily reach $200,000 in value. The probate fees for each the executor and the attorney will be $5,150. Additional fees are added for such things as the sale of assets, tax matters or other extra activity.
The answer to that question is probably yes. Exceptions would be where there would be some value in having a court oversee the process of distribution of your estate, such as where there is a question of competence or whether your wishes will be carried out. If you have questions about this decision, discuss it with an attorney.
Some of the effective ways of planning to avoid probate of an estate are discussed below. If your property fits in any of the following categories, you may be able to avoid probate in these specific situations under California law:
See the discussion of living trusts elsewhere for more information about this device for avoiding probate.
See the discussion of joint accounts elsewhere for more information about this device for avoiding probate.
If your estate is below $100,000 and there is no real estate, there is a simplified procedure for handling the estate after death. Automobiles do not count in the $60,000 limit and there are several other exclusions that make this a useful approach for many people. There is an affidavit (California Probate Code §13100) to complete and much of your property can be transferred in this way.
We provide a sample of this Affidavit for your use. The declaration must describe the item of property you want transferred and be given to the holder of that property.
Sample Declaration Pursuant to California Probate Code §13100
The undersigned, ______[Name of declarant]___, declares as follows:
I am the successor in interest of decedent __[name of decedent]___, who died in ___[county]___, California, on _________, 199__.
At least 40 days have elapsed since the death of the decedent, as shown in the certified copy of the decedent's death certificate attached to this declaration.
[Either of the following, as appropriate]
No proceeding is now being or has been conducted in California for administration of the decedent's estate.
[Or]
The decedent's personal representative has consented in writing to the payment, transfer, or delivery to the declarant of the property described in this declaration.
The current gross fair market value of the decedent's real and personal property in California, excluding the property described in Section 13050 of the California Probate Code, does not exceed one hundred thousand dollars ($100,000).
The following [e.g., "account"] constitutes a portion of the property in decedent's estate: [describe property claimed by this declaration - e.g. "current balance in Savings account No 1234 at Big Bank, 1234 Main Street, Los Angeles"] .
[Select one of the following:]
Decedent died without a will and, under Section 6402 of the California Probate Code, I am decedent's sole heir at law and the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent's interest in the described property.
[Or]
Decedent left a Will and I am decedent's testate beneficiary of the described property.
No other person has a superior right to decedent's interest in the described property.
Pursuant to the facts set forth above and Section 13100 of the California Probate Code, I request that the [described property] be paid, transferred and delivered to the declarant.
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated: April 28, 1994
_________________
[Name of declarant]
[Attach a Notary form]
[Attach a certified copy of decedent's death certificate, inventory and appraisal if estate includes California real property, and, if applicable, evidence of decedent's ownership of the described property. If a will is in probate, also attach a copy of personal representative's consent and letters testamentary]
If the gross value of all real property in California is worth less than $20,000, it may avoid probate and can be transferred by a "Affidavit Re Real Property of Small Value" (California Probate Code §13200) (This is a state printed form, Judicial Council form DE-305 which can be found at the Judicial Council Forms site under the Probate-Decedents Estates section).
A simple, non-probate procedure is available to transfer title to automobiles and registered boats in California.
Where there is no other property that needs to be probated, a person named in a Will or an heir of a deceased person can complete a declaration and submit it to the Department of Motor Vehicles in order to transfer title to a registered motor vehicle from the deceased to themselves.
This same method is used when the vehicle was transferred to a living trust. A form for this purpose is available from the DMV. You will have to present the registration form as well.
The procedure to transfer title to a registered mobile home is similar to that for a motor vehicle. The form to do so is available from the California Department of Housing and Community Development. You must wait for 40 days after death for this procedure.
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