When someone passes away in California, a Probate may or may not be necessary. An Attorney only files a Probate in certain instances.
AN ATTORNEY WOULD NOT FILE A PROBATE WHEN:
An Attorney would not file a Probate for a person who passes away without any assets. The decedent may not own property such as a house, condo or car and additionally may not have any investments. In short, there would be no need for a Probate when there are no assets to distribute.
In addition, an Attorney would not file a Probate when the decedent had assets and had beneficiaries listed for those assets. This may involve assets such as a bank accounts, investment accounts, life insurance or other financial holdings.
Likewise, an Attorney would not file a Probate when owners of a house or condominium are listed as ‘joint tenants’. In this case, the surviving owner does not require a Probate. Alternatively, the owner(s) may have had a Trust prepared which clearly states beneficiaries. This too would avoid a Probate.
AN ATTORNEY WOULD FILE A PROBATE WHEN:
An Attorney would file a Probate when there are assets to distribute. The decedent may have had a Will that states beneficiaries as well as an executor. The Will may be valid if typewritten & witnessed by two individuals. It may also be valid if it’s a ‘holographic’ Will which is handwritten and signed. Although a Will does not avoid Probate, it helps in designating an administrator and beneficiaries. The executor in a Will usually becomes the administrator of the Probate if filed in the court.
In California there are different procedures depending on the value of the asset(s). Financial assets under $184,500 would require a Probate Code Declaration. This is an affidavit which clearly states who should receive the asset.
A Probate Code Declaration can also be used for real property under $61,500. In California this is usually for a condominium or a mobile home (with a deed as opposed to a pink slip).
In most instances when there is property in California, an Attorney will need to file a formal Probate. This process takes over 8 months and could take many years if contested. An Attorney will file a Probate in court for financial assets over $184,500 and/or real property over $61,500 with the restrictions as outlined above. Heirs will have the option of selling the property or keeping it. If the heirs decide to keep the home, property taxes may increase.
When a family member or close friend passes away in Los Angeles County, give Legal Action Workshop a call. We will answer your questions and take quick action! Call 1-800-HELP-444.