- What is a Heggstad Petition?
- What is an Ancillary Probate?
- What Happens if a Named Executor is an Out-of-State Resident?
- When the Person Nominated Declines or Cannot Serve as Executor, and There is no Successor Executor Nominated, Who can Serve?
- How Long Does a California Probate Proceeding Take?
- What are the Costs Involved in a California Probate Proceeding?
- What are the Basic Duties of an Executor or Administrator?
- What Property Needs to go Through Probate?
- What Happens if There is no Will in California?
- Are Handwritten Wills Valid in California?
- Are “Pour-Over Wills” Probated?
- What If My Deceased Spouse/ Registered Domestic Partner Left Me Property?
A Heggstad Petition is a court filing formally asking a court to issue a court order that a particular property or properties is a trust asset, although the property was not legally titled in the trust as a trust asset. For more detail please refer to my article here.
The most common ancillary probate is a court proceeding regarding property in the probate court state that is owned by a decedent who died while a resident of another state. This typically involves real property but can include personal property such as a bank account. For more detail please refer to my article here.
In California, an out-of-state family member or other person may perform the duties of the personal representative (also known as executor or administrator). However, those persons are required to meet certain criteria. He/she must be a U.S. citizen, be over 18 years old, and must have no felony convictions.
If not named in a Will the person to serve is commonly referred to as an administrator. The priority of those persons entitled to administer an estate is set by California law under Probate Code § 8461.
Even in the simplest probate, with no contested issues or disputes, the process is likely to take at least 9 months to a year. In major part the time is dictated by court calendars and statutory waiting periods.
Depending on the size of the estate, excluding attorney and representative fees, costs can total $1500-$2000. Costs include filing fees, probate referee appraisal fees, publication costs, etc. In addition, attorney fees and personal representative fees are set by California’s Probate Code §10810. The statutory fees prescribed by §10810 are based on the value of the estate, as determined during the probate process as follows:
- 4% of the first $100,000 of the estate
- 3% of the next $100,000
- 2% of the next $800,000
- 1% of the next $9,000,000
- 5% of the next $15,000,000
The duty of the Executor or Administrator is like a trustee, generally, to pay the debts of the estate and collect and distribute the assets according to the law and be accountable to the beneficiaries about the distribution of the assets.
Probate assets are any assets that are owned solely by the decedent, including real property titled solely in the decedent's name or held as a tenant in common and personal property, such as jewelry, furniture, and automobiles (if not jointly owned) and bank accounts and retirement accounts that are solely in the decedent's name with no designated beneficiary. Here are kinds of assets that don't need to go through probate:
- Retirement accounts—IRAs or 401(k)s, for example—for which a beneficiary was named.
- Life insurance proceeds (unless the estate is named as beneficiary, which is rare)
- Property held in a living trust.
- Funds in a payable-on-death (POD) bank account.
If a California resident dies without a will, they are said to have died "intestate." The laws of intestate succession are used to determine who will inherit the estate. In general, under California's intestacy statutes, the following have preference in the following order:
- Children: to be divided equally among all children.
- Parents: If no surviving spouse/domestic partner or children.
- Siblings (or their children): If no surviving spouse/domestic partner, children, or parents.
- Grandparents: If no surviving spouse/domestic partner, children, parents, or siblings (or children of siblings).
- California: If, after an investigation, there are no relatives found.
A holographic will is where the testator (person writing the will) writes his/her wishes in his/her own handwriting. Handwritten wills are valid in California if the holographic will conforms to California Probate Code § 6111.
A pour-over will is a special type of will used in conjunction with a trust. Why is a pour-over will needed if you have a trust? Unfortunately, there are occasions where the person creating the trust failed or neglected to transfer property into the trust. Assuming a Heggstad Petition will not work (see above) the will must be probated if the property affected is a probatable (see above).
In California, spouses or registered domestic partners are given privileged status in regards to collecting the assets of their deceased spouse’s or registered domestic partner’s estate. It is a simplified spousal property petition that takes much less time than a full probate.
If you can find a last Will and if you are named sole beneficiary, a spousal property petition can be used to transfer the deceased’s separate property and community property to you.
If you cannot find such a Will then the transfer of the deceased’s estate will have to be made according to the California’s law of intestate succession. In that event, there may be beneficiaries other than you. The spousal property petition can be used to transfer community property. If the decedent also owned separate property, a full probate may be needed unless the separate property enters in the “small estates” category. (See my article What if there is no Will?).
If you need California or Orange County probate representation, please contact me for a free consultation at (949) 243-0408 or through my online contact form. I will spend time with you to answer your questions.