Probate in the State of California

The Law Office of Elizabeth S. Cassidy represents clients in probate administration matters.  Ms. Cassidy also represents clients in probate court matters, including conservatorship proceedings and trust, estate and probate litigation.

Probate Defined

The term "probate" is derived from the Latin term meaning "to prove the will".  Probate refers to the process where a court oversees the administration of a deceased person's estate.  The purpose of the probate process is to ensure that any final bills and expenses are paid, including any taxes owed, and any remaining assets are distributed to the beneficiaries named in a will.  Probate may occur even if there is no will; if the decedent died without a will, the decedent is said to have died "intestate", and the decedent's estate will be distributed to the decedent's heirs as defined under California's laws governing intestate succession.

Determining if Probate is Necessary

Probate is generally required if the decedent:

• Owned an interest in real property titled solely in the decedent's name, the value of which exceeds $20,000.
• Owned personal property titled solely in the decedent's name, the value of which exceeds the maximum limits for property that can be transferred without probate, as discussed below.

Probate is generally not required if the decedent:

• Owned real property that will pass by right of survivorship to the spouse or other person named on the deed.
• The decedent owned personal property that will pass by right of survivorship to the spouse or other person named on the title.
• The decedent owned life insurance or retirement benefit accounts, the disposition of which is controlled by the beneficiary designation.  However, if the decedent failed to name a beneficiary, or the named beneficiary is deceased and a contingent beneficiary is not indicated, probate may be necessary.

Small Estates May Not Require Probate

The decedent's assets may be transferred by affidavit procedure without having to go through the probate process if the following qualifications are met:

• The gross value of the decedent's personal and real property located in the state do not exceed $100,000;
• 40 days have elapsed since the death of the decedent;
• Probate has not been initiated to administer the decedent's estate, or the personal representative of the estate has consented to the transfer; and
• No other person has a superior right to the interest of the decedent in the property to be transferred.

If all of these conditions are met, the person seeking to claim the asset may submit an affidavit to the person or entity in possession of the asset, with a request that the asset be transferred.  If the person or entity in possession refuses to transfer the asset, the claimant can initiate a court proceeding seeking recovery of the asset.

Helpful Probate Resource

The State Bar of California has an informative online guide to estate planning and probate that offers answers to many frequently asked questions regarding probate and estate planning.

Seek Experienced Legal Representation

Serving as the personal representative of a decedent's estate involves many fiduciary duties and responsibilities.  It is important to seek the guidance and representation of an experienced California probate attorney.  Contact the Law Office of Elizabeth S. Cassidy by e-mail or call (925) 371-1804 for a free initial consultation.