California has "simplified procedures" for transferring property when the estate is worth under a certain amount (from $20,000 to $150,000 depending on the circumstances and the kind of property).
Joint tenancy is a way for two or more people to own property in equal shares so that when one of the joint tenants dies, the property can pass to the surviving joint tenant(s) without having to go through probate court.
Yes. If a joint tenant dies, the property is included in his or her taxable estate. Talk to a lawyer before putting property in joint tenancy or ending a joint tenancy.
You must have a written document, like a deed to real property or title to a car, that says the property is in joint tenancy with the names of the joint tenants.
The most common assets owned jointly are real property (land or buildings), bank accounts, stocks and bonds and automobiles.
You can change the tile using a form called “Affidavit of Death of Joint Tenant.” [See the Sample Affidavit below.]
There may be tax consequences. So, talk to a lawyer before you record the Affidavit.
You can use this Sample Form. It is not an official form, but you can use it for most cases.
(Sample Form)
AFFIDAVIT OF DEATH OF JOINT TENANT
STATE OF CALIFORNIA
COUNTY OF ALAMEDAI, [affiant's name], being duly sworn, say:
I am 18 years of age or over. The decedent described in the attached certified copy of Certificate of Death is the same person as [name of person who died here], who is named as one of the parties in the deed dated [date], executed by [name of grantor] to [name of decedent] and [name of surviving joint tenant], as joint tenants, recorded on [date], in [ e.g., Book __, page __] of the Official Records of Alameda County, California, covering the property situated in [city], Alameda County, California, described as follows:
[Provide legal description]
Dated: _________[Signature]____
____[Typed name]______
Affiant
Subscribed and sworn to before me on [date]
___[Signature]___
___[Typed name]__ [Seal] Notary Public for the State of California
There may be tax consequences. So, talk to a lawyer first.
If the deceased person’s real and personal property is worth $20,000 or less, the spouse or minor children can ask the court to "set aside" the estate. This is much easier than a full probate proceeding.
If you want the court to set aside the estate, you can file a Petition requesting an order to set aside the decedent’s estate as provided in Probate Code Section 6602.
You do not have to include property held in joint tenancy, multiple-party accounts, or pay-on-death accounts. But, you must include the decedent's share of any community property.
If the Court sets aside the estate, the surviving spouse or children have to pay the decedent's unsecured debts up to the value of the estate, minus liens and homestead or other exempt property.
If you get the estate, you are responsible for the decedent’s debts for one year unless the creditor files a court action during that year.
There may be tax consequences. So, talk to a lawyer first.
To read more about the law on this topic, see Probate Code Section 6600.
You can collect the decedent’s personal property and distribute it to the heirs (or the beneficiaries named in the Will) by using a declaration. This method is called the Section 13100 Procedure.
This procedure has certain rules:
To read more about the law on this topic, see Probate Code Section 13100.
If the decedent dies without a Will, the only people who have the right to collect his or her property are:
If the decedent dies with a Will, only the beneficiaries under the Will are entitled to collect.
To transfer the real property, use California Judicial Council Form DE-305, Affidavit Re: Real Property of Small Value ($20,000 or Less). After filling it out, sign it in front of a notary. The form will ask you for an inventory and appraisal and a description of the real property.
Or, if there is a probate proceeding pending:
If you need a marketable title (title that is free from any defects or reasonable doubts about who has title) to the property, take a certified copy of your filed form to the County Recorder of the county where the real property is located.
To read more about the law on this topic, see Probate Code Section 13200.
Yes. If you are an heir or beneficiary, you can ask the Court to make an order to clear title. You can do this to transfer:
You cannot do this for personal property only. To transfer only personal property, use the Affidavit or declaration procedure.
You do not have to include property outside of California, held in joint tenancy, in a revocable living trust, in pay-on-death accounts, passing to the surviving spouse under a Spousal Property Petition, or other property as explained in Probate Code Section 13151.
There are certain rules:
Or, if there is a probate proceeding pending:
Fill out form DE-310, Petition to Determine Succession to Real Property. You can use this form for clearing title to personal and real property, too.
File the form with the Court Clerk. The Clerk will assign a hearing date. You must have notice of the hearing served to the person listed on paragraph 14 of DE-310. Someone 18 or over and not involved in this case must serve the notice. Use form DE-120 to prove that notice has been given. File this completed form along with any other documents required on DE-310.
You must also fill out DE-315, Order Determining Succession to Real Property (Estates $150,000 or less), and give it to the clerk’s office at least 5 days before the hearing.
If the Court approves the Petition, the judge will sign the Order, have the clerk file it, and give your conformed copies back to you.
If you need a marketable title (title that is free from any defects or reasonable doubts about who has title) to real property transferred to you by the Order, take a certified copy of your filed Order to the County Recorder of the county where the real property is located.
If you receive property under this procedure, you will be responsible for the decedent's debts, up to the fair market value of the property you received as calculated at the time of death.
A Spousal Property petition is a way to transfer or confirm property to a surviving spouse or registered domestic partner without a full probate proceeding. It can usually be done with only one hearing in the court. If the decedent’s estate is not complicated, the petition can settle questions about title or ownership of property.
Yes. When you file your forms, the clerk will tell you the hearing date. At the hearing, the judge will decide whether to grant or deny your petition.
Yes. At least 15 days before the hearing, you must have the following people served (given) a Notice of Hearing (by mail or in person):
Yes. You must fill out DE-226, Spousal Property Order and give it to the clerk’s office at least 5 days before the hearing. Please attach a note to this form with the date of your hearing.
If the Court approves the Petition, the judge will sign the Order, have the clerk file it, and give your conformed copies back to you.
Talk to a lawyer to see if you will be responsible for the decedent's debts.
Find all the decedent’s life insurance policies, if available. You may be able to get them from:
Find out the amount of the benefit, the entitled beneficiaries and the payout options.
Send a certified copy of the decedent's death certificate along with the claim form to the company.
Talk to a tax consultant to learn about your options and the tax implications.
Some companies have Human Resources Departments that help employees and their families understand retirement/employee benefits.
Other companies may require you to consult with a bank or institutional trustee, a life insurance company or a commercial pension administrator.