What Is The Difference Between The Petitions For Estates Less Than $50,000 and $150,000?
The claim for real property less than $50,000 is not used very often. The simple reason is that there are very few parcels of property in California, which have a gross value less than $50,000, but we do use it when there is some ownership of undeveloped land or things of that nature, and it has to be less than $50,000. For this petition, the person making the claim or the beneficiary completes a document similar to the small estate affidavit in that it has the same kind of statements. However, the time is six months after the date of death of the decedent, and the value is $50,000 rather than $150,000. This one has to be accompanied by an appraisal of the property executed by someone called a probate referee.
A probate referee is a person who has been appointed by the court to value assets for all the estates. There are several for each county. Therefore, the person filing this must first contact one of those probate referees, have them appraise the property, and attach that appraisal to this affidavit, which is then filed within a court system. There generally is no hearing for this procedure. The court clerk will look over the paperwork, and if everything is in order, the court clerk will stamp it, and issue a certified copy. This will be recorded with the county recorder to complete the transfer of the title.
We cannot use the small estate affidavit for transfer of real property, because it is only for personal property. We would use a petition for estates under $150,000, if part of that $150,000 was real estate. This is a summary probate proceeding. This means there will be one or more hearings to finalize, or to get a court order. This is only effective once a judge has signed a court order, and orders that transfer of the property. It includes most of the same terms that were in the small estate affidavit, but in addition, because there is a real property the petitioner must also include the appraisal of the property by a probate referee.
What Is The Hierarchy Of Distribution Once Somebody Dies?
We go over distribution with the beneficiaries, and the executor to determine which procedure is necessary to transfer each asset. First, we look to see if on each asset there a joint tenant named. If there was, that joint tenant receives the interest, and there is nothing more to do. Secondly, if there is no joint tenant, then we look to see if there was a beneficiary designation. If there was a beneficiary designation, then the person or persons named as beneficiaries will receive the asset, and there is nothing further to do.
If there is no joint tenant or beneficiary, then we look to see if the asset was titled to a trust; in other words, if the trust was named as the owner on the title to the asset. If so, the successor trustee can take control of the asset, and distribute it according to the terms of the trust without having to get permission from a court or anyone else.
If none of those three applies, then we look to see if the person had a trust, and whether the asset was referred to in the trust document. Sometimes people will list an asset in a trust, and they do not actually transfer ownership of that asset. If that happens, then the trustee does not have the right to manage it. We are going to have to go into court, and have that asset transferred to the trust. If it is named in the trust, then we can do a shortened hearing called a Heggstad Petition. This is based on case law known as Estate of Heggstad, and it says that the person who created the trust, or the owner of the asset, had the intent to hold it in a trust, they just had not formally changed the title.
The court can follow the intent of the trustor, and change the title to the trust without having to go through all the procedures of probate. It is a simpler process than probate, and it is a little bit more complicated than the other procedures available. It saves the trustees and the beneficiaries about a year of procedure. It is worth looking into if the person had a trust, but the assets were not titled to the trust.
Finally, if none of this works, then the last thing is what we call probate assets. If it does not transfer to anyone else, then that asset is subject to probate. We look at these assets. We need to determine whether there are more or less than $150,000 and see if we can do summary procedures, or whether we need to do a complete probate.
How Can Someone Avoid Probate If They Have A Trust But Haven’t Transferred Assets To It?
That would be the Heggstad petition, if we were trying to avoid probate. This is to have the court order to transfer the assets into a trust rather than having to go through the formal probate. You may have to show some indication in the trust document that the person intended for that asset to be an asset of the trust, but never formally transferred the title.
What Sets Your Firm Apart In Helping People To Avoid Probate?
Our position is to always try and avoid probate if possible. It would be easier as a firm, if every time somebody came in with assets that did not have a trust, just to open a probate case for each one of them. That would require less creative thinking on our part, less legal work, and potentially greater fees. However, we look at the estates, and see if all or part of the estate can be transferred without probate. We can save our clients the time and money of going into the entire probate process. We always go through that checklist prior to determining that we need to open a probate case.
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