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19th edition

How to
Probate
an Estate
in California

by Julia Nissley
The
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19th edition

How to
Probate
an Estate
in California

by Julia Nissley
Nineteenth Edition April 2008
Editor betsy simmons
Cover Design susan putney
Production margaret livingston
Proofreading Emily K. Wolman
Index songbird indexing service
Printing delta printing solutions, inc.

International Standard Serial Number (ISSN): 1940-6282


ISBN-13: 978-1-4133-0760-3
ISBN-10: 1-4133-0760-4

Copyright © 1986, 1987, 1988, 1989, 1990, 1991, 1993, 1994, 1997, 1998, 2000, 2002, 2003,
2004, 2005, 2006, 2007, and 2008 by Julia Nissley
All rights reserved. Printed in the USA.
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wise without prior written permission. Reproduction prohibitions do not apply to the forms
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Acknowledgments
This book was made possible through the efforts of many people. I would especially
like to thank Mary Randolph and Shae Irving, two splendid editors, who reviewed the
text and made numerous suggestions for improvement. Others who made valuable con-
tributions are Jake Warner, Steve Elias, Mari Stein, Sarah Hinman, Susan Carlson Greene,
and Betsy Simmons. My gratitude also to the many readers who have taken the time to
write and offer comments and suggestions. Finally, a special thank you to my former
boss Alan Watenmaker, a probate and estate planning attorney in West Los Angeles,
for giving me the opportunity to learn so much about the subject, my children for their
patience, and especially my husband, Ron, for always being there with encouragement
and support.

The procedures in this book are for California estates only. You cannot
transfer real estate located in other states using the instructions
in this book. To transfer property located outside of California, you must
­either learn that state’s rules or consult a lawyer in the state where the
property is located.
Table of Contents

Your Probate Legal Companion

1 An Overview
What Is Probate?................................................................................................. 4
What Is Involved in Settling an Estate?................................................................ 4
How Long Does It Take to Settle an Estate?......................................................... 5
What This Book Covers....................................................................................... 5
Simple Estate Checklist....................................................................................... 6
Important Terms in Probate................................................................................. 6
Insolvent Estates................................................................................................. 9
Estate Taxes....................................................................................................... 10
Do You Need an Attorney?................................................................................ 10

2 First Steps in Settling an Estate


Who Should Act as the Estate Representative?.................................................. 14
Responsibilities of the Estate Representative..................................................... 16
Specific Duties of the Estate Representative...................................................... 17

3 Who Are the Heirs and Beneficiaries?


Where to Start.................................................................................................. 34
How to Read a Will.......................................................................................... 37
Compare Schedule of Assets With Property Left in Will ................................... 42
Who Inherits When the Will Is Ineffective?....................................................... 45
If There Is No Will............................................................................................. 47
The Concept of Right of Representation............................................................ 48

4 What Is the Decedent’s Estate?


Real Property.................................................................................................... 56
Personal Property.............................................................................................. 63
What Establishes Ownership of Property?......................................................... 64
How Was the Decedent’s Property Owned?...................................................... 64
How to Determine Whether Property Is Community or Separate...................... 67
Actions That Change the Character of Property................................................. 69
Property That Is a Mixture of Community and Separate Property....................... 70
Examples of Property Ownership...................................................................... 71
Property Acquired by Couples Before They Moved to California....................... 73

5 Preparing a Schedule of the Assets and Debts


Describe Each Asset ........................................................................................ 77
Value Each Asset (Column A)............................................................................ 77
How to Determine Ownership of Property (Columns B & C)............................ 78
List the Value of the Decedent’s Interest (Column D)......................................... 79
Determine Whether Property Is Probate or Nonprobate Asset (Column E)......... 79
List All Debts.................................................................................................... 80
Checklist of Property to List on Schedule of Assets............................................ 80
Schedule of Assets for a Sample Estate.............................................................. 95

6 How to Identify the Best Transfer Procedure


Nonprobate Assets.......................................................................................... 104
Assets That May Be Subject to Formal Probate................................................ 105
Examples of How Assets Are Transferred in Typical Estates.............................. 107
Sample Estates................................................................................................ 107
7 What About Taxes?
Decedent’s Final Income Tax Returns.............................................................. 112
Fiduciary Income Tax Returns......................................................................... 114
Other Income Tax Returns.............................................................................. 115
Stepped-Up Tax Basis Rules for Inherited Property.......................................... 115
Federal Estate Tax Return................................................................................ 116
California Estate Tax Return............................................................................ 119
California Inheritance Tax............................................................................... 119
Tax Issues for Some Typical Estates................................................................. 120

8 Transferring Title to Real Property


Ways to Transfer Real Estate After Death......................................................... 124
Basic Information on Recording Documents................................................... 124
Change in Ownership Statements................................................................... 125
How to Record Your Document Transferring Title............................................ 128
Mortgages....................................................................................................... 133

9 How to Transfer Securities


Documents Required to Transfer Securities..................................................... 137
The Stock or Bond Power................................................................................ 139
The Affidavit of Domicile................................................................................ 141
The Transmittal Letter...................................................................................... 141
How to Sell Securities..................................................................................... 141
The Stock Transfer Tax..................................................................................... 141

10 Joint Tenancy Property


Where to Start................................................................................................ 146
How to Clear Title to Real Property in Joint Tenancy....................................... 146
How to Clear Title to Securities Held in Joint Tenancy..................................... 149
How to Clear Title to Motor Vehicles and Small Boats
Held in Joint Tenancy................................................................................. 149
How to Clear Title to Joint Tenancy Bank Accounts
(and Totten Trust Accounts)........................................................................ 151
How to Clear Title to Money Market Funds and Mutual Funds........................ 151
How to Clear Title to U.S. Savings Bonds in Co-Ownership............................ 151

11 Transferring Small Estates Under $100,000


Overview of the Simplified Transfer Procedure for Small Estates..................... 154
How to Determine Whether You Can Use Summary Procedures..................... 155
How to Transfer the Property.......................................................................... 156

12 How to Transfer Trust Property and Property


­Subject to Life Estates
Notifying Heirs and Beneficiaries................................................................... 172
Trust Property................................................................................................. 172
Handling Debts and Expenses........................................................................ 174
How to Transfer Property Held in Living Trusts................................................ 174
Life Tenancy (Life Estate)................................................................................. 177

13 An Overview of the Probate Court Process


Do You Really Need a Probate Court Proceeding?.......................................... 181
Probate Checklist............................................................................................ 181
Dealing With the Probate Court...................................................................... 181
Beginning the Probate Process........................................................................ 187
Taking Care of the Estate During Probate........................................................ 194
Closing the Estate........................................................................................... 199

14 Conducting a Simple Probate Court Proceeding


Step 1: Prepare the Petition for Probate........................................................ 205
Step 2: Prepare the Certificate of Assignment............................................... 220
Step 3: Prepare the Notice of Petition to Administer Estate........................... 220
Step 4: File Your Petition for Probate............................................................ 226
Step 5: Complete the Proof of Subscribing Witness Form............................. 228
Step 6: Complete a Proof of Holographic Instrument................................... 233
Step 7: Notify Government Agencies........................................................... 233
Step 8: Prepare Your Order for Probate........................................................ 234
Step 9: Study and Respond to the Calendar Notes....................................... 234
Step 10: Prepare the Letters........................................................................... 238
Step 11: Prepare the Duties and Liabilities of Personal
Repre­sen­tative Form......................................................................... 238
Step 12: Prepare the Application Appointing Probate Referee......................... 243
Step 13: Prepare Notice of Proposed Action, If Necessary.............................. 243
Step 14: Prepare the Inventory and Appraisal Form........................................ 252
Step 15: Notify Creditors and Deal With Creditors’ Claims and
Other Debts..................................................................................... 258
Step 16: Prepare the Petition for Final Distribution......................................... 266
Step 17: Prepare Notice of Hearing (Probate)................................................. 292
Step 18: Prepare Order of Final Distribution.................................................. 293
Step 19: Transfer the Assets and Obtain Court Receipts.................................. 296
Step 20: Request Discharge From Your Duties................................................ 302

15 Handling Property That Passes Outright to the


­Surviving Spouse or Domestic Partner
An Overview of These Simplified Procedures.................................................. 306
Collecting Compensation Owed the Decedent............................................... 307
Affidavit for Transferring Community Real Property......................................... 308
Survivorship Community Property.................................................................. 312
The Spousal or Domestic Partner Property Petition.......................................... 314
How to Transfer the Assets to the Surviving Spouse or Partner......................... 332

16 If You Need Expert Help


What Kind of Expert Do You Need?................................................................ 336
Using a Legal Document Assistant.................................................................. 336
Using a Lawyer............................................................................................... 337
Glossary
Appendixes
A California Probate Code §§ 13100–13106

B Judicial Council Forms


DE-111 Petition for Probate
DE-120 Notice of Hearing
DE-121 Notice of Petition to Administer Estate
DE-121(MA) Attachment to Notice of Petition to Administer Estate
DE-131 Proof of Subscribing Witness
DE-135 Proof of Holographic Instrument
DE-140 Order for Probate
DE-147 Duties and Liabilities of Personal Representative
DE-147S Confidential Supplement to Duties and Liabilities
of Personal Representative
DE-150 Letters
DE-157 Notice of Administration to Creditors
DE-160 Inventory and Appraisal
DE-161 Inventory and Appraisal Attachment
DE-165 Notice of Proposed Action
DE-174 Allowance or Rejection of Creditor’s Claim
DE-221 Spousal or Domestic Partner Property Petition
DE-226 Spousal or Domestic Partner Property Order
DE-270 Ex Parte Petition for Authority to Sell Securities and Order
DE-295 Ex Parte Petition for Final Discharge and Order
DE-305 Affidavit re Real Property of Small Value ($20,000 or Less)
DE-310 Petition to Determine Succession to Real Property
(Estates of $100,000 or Less)
DE-315 Order Determining Succession to Real Property
(Estates of $10,000 of Less)
C Non-Judicial Council Forms
Declaration Regarding Property Passing to Decedent’s Surviving Spouse or
­Registered ­Domestic Partner Under Probate Code § 13500
Who Inherits Under the Will?
Schedule of Assets
Notification by Trustee
Affidavit—Death of Joint Tenant
Affidavit—Death of Trustee
Affidavit—Death of Spouse
Affidavit—Death of Domestic Partner
Affidavit—Death of Spouse or Domestic Partner—Survivorship Community Property
Affidavit for Collection of Personal Property Under California
Probate Code §§ 13100–13106
Deed to Real Property
Probate Case Cover Sheet—Certificate of Grounds for Assignment to District
(L.A. County)
Application and Order Appointing Probate Referee (L.A. County)
Change in Ownership Statement (Death of Real Property Owner) (L.A. County)
Preliminary Change of Ownership Report

Index
C H A P T E R

1Your Probate Legal Companion

T he loss of a close family member or


other loved one can bring feelings of
anxiety and uncertainty, as well as grief.
If, while you’re trying to cope and adapt to changes,
you take on the added burden of settling the
Even then, court involvement has been reduced to
a minimum. Probate is mostly paperwork—and you
can use printed, fill-in-the-blanks forms provided
by the court. This book contains all the forms you’ll
need, and we’ll show you how to fill them in and
deceased person’s affairs, it may all seem like too file them. Patience and the willingness to take time
much to deal with. to carefully follow directions is all it takes. As long
This book can help. as the estate is without unusual problems, you can
How to Probate an Estate in California explains wind up the deceased person’s affairs quickly and
the major steps required to settle a simple California easily with the instructions in this book.
estate. It uses plain English to make the law as There may be times, however, when you need
easy to understand as possible. The early chapters some expert help. This may mean hiring an attorney
discuss what you should do first, and the rest guide to advise you on one or more specific points, or
you through the estate administration process. it may require turning over the entire probate
You’ll get clear instructions for how to complete a proceeding to an attorney. Throughout the book
formal probate court proceeding, how to deal with we alert you to some of the potential problems.
community property, how to bypass the probate For example, if there are major disagreements
court and transfer a small estate by a simple affidavit among the beneficiaries, or if someone is planning
or through “summary” proceedings, how to handle to contest the will, you will need a lawyer. Also,
joint tenancies, and much more. if the estate is very large (over $2 million) with a
Not all estates need a formal probate court lot of assets and many beneficiaries, you’ll want to
proceeding. California law contains many shortcuts get some help with federal estate tax issues, which
—methods for transferring property after a death can get complicated. Finally, be aware that this
without probate court proceedings, most of which book explains how to handle the estate of someone
can be completed in a matter of weeks. who was a resident of California at death and who
Only when there is no other way to transfer owned property in this state. If the deceased person
title from the deceased person to the new rightful lived elsewhere or owned real estate in another
owner is a formal probate proceeding necessary. state, this book is not for you.
2 How to probate an estate in California

You may wonder, if you’re in the midst of


grieving, whether you can cope with the details Icons Used in This Book
and possible complexities of settling a loved one’s
affairs. We can only suggest that you give it a try.
You don’t have to do everything at once; we’ll Caution: A potential problem.
let you know what can wait until you’re ready. Fast Track: Lets you know that you may
And sometimes the concentration needed to do be able to skip some material.
bureaucratic work can even be a form of therapy,
especially when you realize that your efforts will Resources: Refers you to another self-
help preserve the estate and distribute it as your help resource.
loved one intended. Good luck.
Lawyer: Situations when you should see
a lawyer about a particular issue.

Tip: A bit of advice that may help you


with a particular issue.

Cross-Reference: Directs you to another


part of this book for more information.

n
Chapter 1

An Overview

What Is Probate?............................................................................................................ 4
What Is Involved in Settling an Estate?........................................................................... 4
How Long Does It Take to Settle an Estate?..................................................................... 5
What This Book Covers ................................................................................................. 5
Simple Estate Checklist.................................................................................................. 6
Important Terms in Probate............................................................................................ 6
The Gross Estate and the Net Estate........................................................................... 6
The Probate Estate . .................................................................................................. 6
The Taxable Estate..................................................................................................... 9
Insolvent Estates . .......................................................................................................... 9
Estate Taxes ................................................................................................................. 10
Do You Need an Attorney? .......................................................................................... 10
4 How to probate an estate in California

What Is Probate? government offices in person can be an ordeal.


To avoid this, you may settle most simple estates
Many people aren’t sure what the term “probate”
­entirely by mail, even if a formal probate court
really means. They think of it only as some long,
­proceeding is required. In other words, most
drawn out, and costly legal formality surrounding
probate matters don’t require that you appear in
a deceased person’s affairs. Technically, probate
court before a judge. In fact, settling an estate by
means “proving the will” through a probate court
mail is now the norm in many law offices. We will
proceeding. A generation ago, virtually every estate
show you how to do this as we go along.
had to be reviewed by a judge before it could pass
to those who would inherit it. Today there are
­several ways to transfer property at death, some
What Is Involved in Settling
of which don’t require formal court proceedings,
so the term is now often used broadly to describe an Estate?
the entire process by which an estate is settled and Generally, settling an estate is a continuing process
­distributed. which:
For example, a surviving spouse or domestic • determines what property is owned by the
partner may receive property outright from the ­decedent
deceased spouse or partner without any probate • pays the decedent’s debts and taxes, if any,
proceedings at all. Joint tenancy property also escapes and
the need for formal probate, as does property left • distributes all property that is left to the
in a living (inter vivos) trust and property in a pay- ­appropriate beneficiaries.
on-death bank account (Totten trust). If an estate When a person dies, she may own several
consists of property worth less than $100,000, it, categories of assets. Among these might be
too, can be transferred outside of formal probate. household b ­ elongings, bank and money market
Fortunately, the paperwork necessary to actually accounts, v­ ehicles, mutual funds, stocks, business
transfer property to its new owners in the foregoing interests, and insurance policies, as well as real
situations is neither time-consuming nor difficult. We property. All property owned by the decedent at
discuss all of these procedures, as well as how to do the time of his or her death, no matter what kind, is
a formal probate court proceeding. called his or her “estate.”
There is one thing you should understand at the To get this property out of the name of the
outset: The person who settles an estate usually ­decedent and into the names of the people who
doesn’t have much choice as to which property ­inherit it requires a legal bridge. There are several
transfer method to use. That is, whether you are types of legal procedures or bridges to move different
­required to use a formal probate or a simpler kinds of property to their new owners. Some of
method to transfer property at death depends these are the equivalent of large suspension bridges
on how much (or little) planning the decedent that will carry a lot of property while others are
­(deceased person) did before death to avoid of much less use and might be more analogous
probate. This is discussed in detail as we go along. to a footbridge. Lawyers often use the word
Both formal probate and some of the other “administrate” and call this process “administering
nonprobate procedures involve filing papers at a an estate.” In this book we refer to these procedures
court clerk’s office, usually in the county where collectively as “settling an estate.”
the d
­ ecedent resided at the time of death. In larger Most of the decedent’s estate will be passed to
counties, going to the main courthouse and other the persons named in his or her will, or, if there
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