Articles Posted in PROBATE

The San Diego Superior Court has instructions on how to transfer a vehicle without probate. On the probate section, there is a section discussing the transfer of a vehicle without probate. The California Department of Motor Vehicles also has a section on the transfer of a vehicle without probate. To transfer a motor vehicle without probate, the below is the procedure.

The following documents must be submitted to the California Department of Motor Vehicles [DMV]: a title certificate; odometer disclosure statement; statement of facts with the applicable provisions completed; affidavit for transfer without probate and, if owned jointly by two or more deceased person a death certificate for each owner who is deceased. The transfer of ownership cannot be sumitted until 40 days after the death of the owner. If registration fees are due before this period, then these should be paid to avoide penalties.

There is a fee for the transfer of the vehicle ownership. These fees could include any past due amounts or penalties.
Continue reading

The San Diego Superior Court has a probate timeline on their website. The administration of probate can be very complicated and time consuming. The timeline guidelines below are not necessarily what will happen in your case and is used for a general outline of the process and probate timeline.

The first step is to file a probate petition. A hearing will be set and will be from 4-6 weeks after the petition is filed. During this time, you will need to publish the notice of the petition to administer the estate and mail notice of the petition to administer the estate to all persons who are entitled to receive notice. There are very strict time periods and an attorney can assist.

The second step is to check the probate notes, before the hearing, to make sure that there are no defects in the petition and that all necessary documents have been filed.

After the Probate petition is approved, you must submit your Probate Orders, letters and a bond if required. After a minimum of four months from the date of the hearing, you may prepare your inventory and appraisal and file with the San Diego Superior Court, Probate Division and send to the San Diego County Probate Referee. In addition, there must be notice given to all known creditors and you will either accept or reject these creditor claims. Debts will be paid and tax returns filed and, again, there are strict deadlines. Usually 12-18 months from the date of appointment, there will be a final accounting and distribution.
Continue reading

In San Diego, the filing of a petition for probate is the beginning pleading to allow the San Diego Superior Court to obtain jurisdiction over the decedent’s estate. When the court appoints a personal representative, there are many liabilities and duties. In probate litigation, it is very important to understand your rights and also your responsibilities.

Some duties include managing the assets of the estate. Considerations for this are as follows: interest bearing accounts and other investments; keeping estate assets segregated; prudent investments and there are other restrictions. There may be a bond equired in order to be appointed at the personal representative.

Other duties include an inventory of the property of the estate. Considerations for this include filing an inventory and appraisal, determining the property value, locating any property of the estate and filing a change of ownership if necessary. There are many duties in addition to these and also included in this general description and also liability if the law is not followed.
The personal representative may also have to give notice to creditors, obtain insurance and keep accurate and complete records.
Continue reading

The San Diego Superior Court has a lot of information on different areas of the law. The divisions are broken down by area of law and there is a section devoted to probate which has information on many probate issues.

Information includes the definition for probate as a court supervised process for gathering and identifying the assets of the decedent as well as distributing the balance to beneficiaries after paying expenses, debts and any taxes owed to the IRS. Probate also involves the transfer of property of the decedent to beneficiaries. Probate can also involve deciding if a will is valid and other issues brought before the Court.

Not every estate has to go through probate. In San Diego, California, for estates under $100,000, there are procedures to transfer property without a court order. The valuation of an estate can be difficult and needs to be completely accurate.
Continue reading

In San Diego, the San Diego Superior Court has jurisdiction regarding probate cases. One division is the Probate Court. The Probate Rules are very important as they must be complied with any probate case.

The Probate Court Rules include the probate rules under title seven, the probate local rules, the San Diego County Superior Court rules which are effective January 2, 2011, the Probate Court 1 polices and procedures, the Probate Court 2 policies and procedures as well as Probate Department N-23 polices and procedures. It is very important to fully comply with all of the rules and they can be very complicated.

Probate administration can be a very stressful experience for the parties. One of the probate procedures includes the Probate Examiners. There may be a tentative ruling and/or a telephonic court conference before the hearing. The court calendar can often have many parties appearing on the same morning or afternoon and cases can also be continued.
Continue reading

The estate planning attorneys at Scott C. Soady, A Professional Corporation handle not only estate planning, conservatorships, guardianships, and will and trust litigation, but also many probate matters. We receive a lot of calls from individuals who have a lot of questions about probate. Here are some the frequently asked questions about probate in California and more specifically in San Diego.

1. What is Probate? Probate is the court process in which the estate of a deceased person is inventoried, appraised, and distributed to either the beneficiaries of a will or to the heirs at law of a person who has died without a will or trust (ie. intestate).

2. Why is Probate Necessary? When someone has died, whether there will be a probate depends on whether the decedent had all of his assets in a living trust or joint tenancy. If so, then there is no necessity for probate. If a person has died with a will rather than a trust, there will have to be a probate. If the person had no estate plan, ie. no trust or his assets were not in joint tenancy or in payable on death accounts, his estate will have to go through the probate process to distribute the assets to the decedent’s heirs at law. The probate procedure in the county where the individual died will see that the estate is inventoried and appraised, debts of the decedent are paid, and that the property is distributed to the proper individuals.

A simplified probate procedure may be possible with a spousal property petition. Such a petition can be used to transfer assets from the deceased spouse to the surviving spouse or domestic partner without the time and cost of a formal probate.

The spousal property petition can be used if the decedent had a will and the only beneficiary was the surviving spouse or domestic partner. If other beneficiaries are named in the will, however, this procedure cannot be used and a formal probate will be necessary to transfer the assets to all the beneficiaries. If the decedent died without a will, leaving only a surviving spouse or domestic partner, the procedure can also be used. The property is distributed in accordance with the laws of intestate succession. Community property will be transferred to the surviving spouse or domestic partner through the spousal petition. Separate property, if there is any, will have to be distributed through formal probate. If there is property in joint tenancy, that will be distributed to the joint tenant without any probate.

The surviving spouse or domestic partner files a petition with the Probate Court setting forth the facts as to why he or she is entitled to the community property, listing the property to be distributed, the decedent’s date of death, date of marriage, etc. A court hearing is set in the probate court after notice is given to everyone mentioned in the will and the heirs of the decedent. If the court grants the petition, the order is then recorded with the County Recorder in each county where there is real property. Copies of the order may be used to show financial institutions and investment companies to complete the transfer.

If the value of an estate is less than $100,000, California law provides a way to transfer the assets of the decedent without formal probate. The procedure is outlined in Probate Code section 13100, a process sometimes called a “small estate affidavit.” This method can be used to distribute assets such as cash accounts, stock, bonds, personal property, or even real property if valued below the limit.

How do you calculate whether the estate is valued at less than $100,000? The assets of the decedent that must be counted are bank accounts, brokerage accounts, stocks, bonds, mutual funds, real property, other investments, and personal property. Assets that you don’t have to count are property in joint tenancy, assets held in trust, IRAs, 401(k)s, and other pension plans, life insurance proceeds, automobiles, and payable on death (POD) accounts.

What is required to transfer assets? The process requires an affidavit with information about the gross value of the decedent’s real and personal property, the allegation that the decedent’s assets do not exceed $100,000, and that 40 days have passed since the decedent’s death. The person completing the affidavit, the “affiant” must also allege that there has not been a probate administration, must describe the property to be transferred and allege that the affiant(s) are the persons entitled to the property as the beneficiaries under a will or because they are heirs of the decedent who had no will. The affidavit must be signed under penalty of perjury and notarized. Sometimes banks or companies which hold stock will also require that the beneficiaries or heirs get their signatures guaranteed by a medallion. The affidavit and other paperwork is sent to the institution that holds the assets who then transfer the assets into the names of the beneficiaries or heirs.