When someone passes away in California, family members and/or friends will need to consider a number of steps. If the person passes away in their own home or under their own supervision (i.e. not hospitalized or in a facility) the first step would be to call the police or 911. The second step would be to notify family and/or friends. If the decedent was in a facility then that facility would contact the specified contact person. In California, burial instructions may be a part of a Healthcare Directive. Family or friends may also have knowledge as to the wishes of the decedent.

A Probate Attorney would not file a traditional Probate in the following circumstances:

An attorney would not file a Probate when there are no assets. When there are assets, a qualified Probate Attorney would assess the assets and determine which kind of Probate may be necessary. The Attorney would use a ‘small estate affidavit’ for real property worth under $61,500 (for a death occurring after April 1, 2022). In contrast, a Probate Attorney would use ‘Probate Code Declaration’ for non-real assets such as money in accounts under $184,500 (likewise for a death occurring after April 1, 2022). These types of procedures take less time and are less costly. In essence, an attorney would not file a traditional Probate when the combined assets are under $184,500.

There are other factors that may be relevant. Owners of real property who are listed as joint tenants do not need to file a Probate when one party passes away. In this case, the surviving person(s) would be the owner(s). An ‘affidavit of death of joint tenant’ would take the decedent’s name off the deed.

In addition, an attorney would not file a Probate for assets that have a beneficiary listed. To claim the asset, all that is needed is a death certificate and proof of name. In addition, when the decedent has a Trust (also called a Living Trust), it avoids a Probate. In this case the named successor trustee would execute the Trust based on the instructions therein. When the beneficiary(s) wishes to keep the property or asset listed, an estate planning attorney may help with the Trust transfer as well as any property tax issues. However, a realtor may help with the sale of the property.

A Probate Attorney may file a traditional Probate in the following circumstances:

An attorney may file a traditional Probate for real property valued at over $61,500 and when all assets combined are worth over $184,500. When there is a valid Will, the attorney would lodge the Will with the court and file a Probate. When there is no Will, the attorney makes sure that an administrator is chosen by the court. The administrator (or ‘executor’ when there is a Will) is the liaison between the attorney and the court and signs all documents as needed. The purpose of a Probate is to distribute the asset(s) to heirs. The Probate process takes about 1 year to complete.

Legal Action Workshop has been practicing Probate law for over 40 years. We look forward to answering your questions and to handling your Probate both professionally and timely. Please call 1-800-HELP-444 to speak to a staff member immediately.

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