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Alternatives To Probate

In California, when an individual dies (known as a “decedent”), his or her assets must be distributed to the decedent’s heirs. In many cases, the decedent’s assets must go through the legal process known as probate, whereby a Court validates the decedent’s will, or lack thereof, and helps administer and distribute the decedent’s estate to the rightful heirs. This process generally takes at least six months to complete.

There are, however, certain circumstances and procedures whereby probate proceedings can be sidestepped entirely. For instance, if the decedent has a surviving spouse or domestic partner, he or she may file a Spousal Property Petition to transfer all eligible real and personal property.

If the decedent’s estate does not exceed $150,000, a beneficiary may use a Small Estate Affidavit to transfer the decedent’s personal property, such as bank accounts, stocks, furniture, and jewelry.

While California real property cannot be transferred by a Small Estate Affidavit, title can be transferred by an Affidavit Regarding Real Property of Small Value if the real property does not exceed $50,000. The affidavit, however, may not be filed until six months after the decedent’s death.

When the decedent’s real and personal property do not exceed $150,000, title may be transferred through a Petition to Determine Succession to Real Property. Unlike an Affidavit Regarding Real Property of Small Value, this procedure only requires that 40 days (as opposed to six months) have passed since the decedent’s death.

Even if the above procedures cannot be used, certain “non-probate” assets may be immediately distributed to the intended beneficiary without the inherent delay of probate proceedings.

These non-probate assets include property held in an inter vivos (or living) trust; multiple party accounts, such as joint bank accounts and P.O.D. (pay on death) accounts; T.O.D. (transfer on death) accounts; real property held in joint tenancy; life insurance; and retirement accounts, such as an IRA, pension fund, and 401(k).

Contact Herrig & Vogt, LLP today for a free consultation on navigating what can often be a confusing probate process.

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