THE ATTORNEY'S CORNER: TRANSFERRING PROPERTY IN SMALL ESTATES

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By Stephen C. Ross, Esq.

November 17, 2013 (San Diego County) – The California Probate Code provides three summary procedures that may be used to avoid formal probate when transferring property in small estates. Summary procedures are most beneficial when the estate value is small, the number of successors to decedent’s assets is minimal, there will not be any adverse tax consequences, the decedent had few or no debts or liabilities and entitlement to the property is not disputed. Compared to formal probate administration, summary administration usually reduces the time and expense required to transfer property to the persons entitled to it. However, certain requirements must be met in order to use the summary procedures.

The first summary procedure is used to transfer decedent’s personal property. The successor to decedent’s property may use a declaration or affidavit to collect money due the decedent, receive decedent’s tangible personal property and transfer property that is evidence of a debt, interest, security, right, obligation or chose in action belonging to the decedent. This procedure may be used if the gross fair market value of decedent’s personal and real property assets in California is less than $150,000.00 and 40 days have passed since decedent’s death. Certain property is excluded when determining gross estate value.

The second summary procedure is used to transfer decedent’s California real and personal property. If a decedent dies owning California real property and the gross value of the decedent's real and personal property in this state does not exceed $150,000 and 40 days have passed since decedent’s death, the successor to the real property may file a petition in the probate court requesting an order determining the petitioner has succeeded to the real property. The petition may also request the court make an order determining the petitioner has succeeded to decedent’s personal property.

The third summary procedure is used to transfer decedent’s California real property of small value and personal property. If a decedent dies owning California real property and the gross value of the decedent's real property in this state does not exceed $50,000 and at least 6 months have passed since decedent’s death, the successor to the real property may file an affidavit in the probate court requesting transfer of the property. 

The three summary procedures are available to the decedent’s successor(s) in interest to his or her property. “Successor in interest” includes the following: (a) The beneficiary or beneficiaries who succeed to an item of decedent’s property pursuant to a Will; (b) The person or persons who succeed to an item of decedent’s property pursuant to the laws of intestate succession when decedent dies without a Will; and, (c) Certain fiduciaries of a person who is a successor in interest to an item of decedent’s property.

Stephen represents estate planning, trust, will, probate, trust administration, business formation, stepparent adoption and family law matters. He conducts estate planning and probate seminars throughout San Diego County. For more information or to schedule a seminar contact Stephen at (619) 795-8524, stephen@stephenrosslaw.com or visit www.stephenrosslaw.com.

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