Can I Avoid a Probate in California?
Sometimes. In California, one situation that would not require any formal probate process is when a married person dies, and everything was owned with the surviving spouse as community property. In such a situation, the surviving spouse would not have to engage in formal probate administration, but there may be other informal procedures that are necessary. Depending on the circumstances, it could be as simple as recording an affidavit with the county, providing a death certificate to a financial institution, or filing a petition with the court.
In other cases, if the assets of an estate are below certain values, then it is possible for a person to inherit your assets without going through the formal probate process. Each state has a different dollar amount for small estate administration (some much lower than others), these dollar amounts are different for personal property and real property and, depending on who has control over the assets, different state law may apply.
When Can California Small Estate Administration Be Used?
In California, for the small estate administration rules to be applicable, you have to obtain a valuation of the assets that are subject to small estate administration, and it is only applicable for assets in California. The assets that are subject to small estate administration are generally the same as those that are subject to probate. Assets that are subject to probate are those assets that remain titled in a person's name (or remain under the legal ownership of the person) after the person's death.
For small estate administration purposes, however, certain assets are not included in the valuation to determine whether small estate administration is available, and these includes vehicles, vessels, manufactured homes and the like, any amounts due for military service, and any compensation owed to the decedent up to a certain dollar amount.
Assets that are not subject to probate include assets held in a trust and assets passing by operation of law. Assets to pass by operation of law refers to assets which pass to some third person as a result of the owner's death and is typically associated with assets having a formal chain of title. Some examples of this include assets held in joint tenancy, assets with a beneficiary designation, assets with a Payable-on-Death (POD) designation, and similar forms.
The assets subject to small estate administration are appraised at the cash value for cash and cash equivalent assets, while the non-cash assets must be appraised by a California Probate Referee.
What is the Threshold Value for Small Estate Administration?
In California, the law was recently changed as of April 1, 2022, to increase the small estate administration amounts. For deaths occurring after April 1, 2022, the amount will be adjusted every three years.
Presently, if a person dies having only personal property subject to probate in California, and the total value of the personal property is below $184,500, then small estate administration is possible. If the value of the personal property exceeds $184,500, then small estate administration is not available.
If a person dies having only real property (real estate) subject to probate in California, and the total value of the real property is below $184,500, then small estate administration is possible. Depending on the value of the real property, it may be possible to utilize a simple affidavit procedure, or it may require a summary court petition. If the value of the real property exceeds $184,500, then small estate administration is not available.
Alternatively, if a person dies having both real and personal property subject to probate in California, then the sum of the personal property and real property must not exceed $184,500 for small estate administration to be available. Depending on the value of the estate, there may be other small estate procedures that can be used.
How Can Giammichele Law, APC, Help?
If you are dealing with a trust administration and you have an issue regarding small estate administration due to the asset values exceed, there may be procedures that you can take advantage of to avoid having to open a formal probate, such as a petition pursuant to Probate Code Section 850 which could assist in eliminating the assets subject to probate with other court orders.
If a person holds either personal or real property outside of the state of California, you should consult with an attorney to determine potential options, and also to determine whether formal probate administration is necessary or advisable. Our experienced Orange County team at Giammichele Law, APC, is ready and able to assist you as best we can with avoiding the need to open a formal probate proceeding. Contact our office at 949-339-1845 to schedule an initial consultation.
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