Real Property

Probate is time-consuming and can be costly. If an individual has not planned his or her estate in a way that avoids probate, such as by establishing a trust or holding property in joint tenancy, the property will likely be required to be administered through the probate process. However, there are a few alternatives to probate that can be used in limited circumstances:

Spousal Property Petitions

A Spousal Property Petition can be filed under Probate Code section 13500 requesting that all property which would pass to the surviving spouse through a probate proceeding be transferred to the surviving spouse with incurring the cost and going through the hassle of a full-blown probate.The Spousal Property Petition procedure can be used for any property designated to the surviving spouse by the decedent’s Will, and for any community property owned by the decedent and the surviving spouse.

Petition to Determine Succession

In addition to Spousal Property Petitions, beneficiaries or heirs of an estate containing real and personal property that has a collective gross value of $150,000 may bring a Petition to Determine Succession under Probate Code section 13150. If properly handled, this proceeding can be used to transfer property to the beneficiaries of a Will, or – if there is no Will – to the heirs at law of a decedent.

Affidavit for Real Property of Small Value

Finally, if the decedent’s real estate interests in California had a collective gross value of $50,000 or less, the decedent’s successors in interest may file an Affidavit with the County Recorder. However, this Affidavit cannot be filed within the first six months after the decedent’s death.

It is important to note that there can be some limitations and disadvantages to using the non-probate procedures listed here, even when these procedures are available.

The most common problem with the use of these procedures involves the decedent’s debts. While debts can be limited and sometimes terminated through a probate proceeding, creditors can freely pursue beneficiaries and heirs who receive property through one of the summary proceedings discussed here for an amount up to the full value of the property received.

As always, it is wise to consult with an experienced attorney before taking legal action. Give us a call today if you would like to schedule a meeting with one of our lawyers.