19th edition How to Probate an Estate in California by Julia Nissley Dear friends, Since 1971, Nolo has worked hard to help Americans get a fair shake from the legal system. How? By producing books, software, forms and a website that translate legal jargon into plain English, off er clear instructions for routine tasks and break down complex systems into easy-to-understand components. All of our publications are relentlessly researched and tested by a dedicated group of in-house legal editors. And when we come out with a new edition, you’ll know that it’s been thoroughly updated. ere’s a reason why Nolo is not only the nation’s oldest, but also the most respected provider of legal information. Our mission, refl ected in everything we publish, is to give consumers and small businesses the best information available. We’re proud that tens of millions of Americans have looked to Nolo to help them solve their problems and achieve their goals. 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If you want the help of a trained professional—and we’ll always point out situations in which we think that’s a good idea—consult an attorney licensed to practice in your state. Please note 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. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or other- wise without prior written permission. Reproduction prohibitions do not apply to the forms contained in this product when reproduced for personal use. For information on bulk purchases or corporate premium sales, please contact the Special Sales Department. For academic sales or textbook adoptions, ask for Academic Sales. Call 800-955-4775 or write to Nolo at 950 Parker Street, Berkeley, CA 94710. 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. 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 Table of Contents 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 [...]... 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... 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 deceased person’s affairs, it may all seem like too much to deal with This book can help How to Probate an Estate in California explains the major steps required to settle a simple California estate It uses plain English to make the... steps in the actual probate court process is in Chapter 13.) 7 8 How to probate an estate in California How to Settle an Estate How to Settle an Estate Preliminary Steps: Examine decedent’s files, records, and safe-deposit box for will and burial instructions; collect asset information; determine estate representative; obtain certified copies of death certificate; notify government agencies; ascertain... 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. .. bonds (including mutual funds) • Business interests, copyrights, patents, etc • Real property • Antiques and collectibles, motor vehicles (including motor homes) • Miscellaneous assets including household goods and clothing, and • Insurance 9 Determine whether each item of property is community or separate property and how title is held (for example, in the decedent’s name alone, in joint tenancy, etc.)... 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. .. 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? Many people aren’t sure what the term probate really means They think of it only as some long, drawn out, and costly legal formality surrounding a deceased person’s affairs Technically, probate means “proving the... bridges Some of the other bridges involve community property transfers, clearing title to joint tenancy property, winding up living trusts, and s ettling very small estates that are exempt from probate Again, we discuss all of these in detail How Long Does It Take to Settle an Estate? If a formal probate court procedure is required, it usually takes from seven to nine months to complete all the necessary... everything in which the decedent had any financial interest—houses, insurance, personal e ffects, automobiles, bank accounts, unimproved land, etc.—regardless of any debts the decedent owed and regardless of how title to the property was held (for example, in a living trust, in joint t enancy, or as community property) The net estate, on the other hand, is the value of what is left after subtracting... easy to understand as possible The early chapters discuss what you should do first, and the rest guide you through the estate administration process You’ll get clear instructions for how to complete a formal probate court proceeding, how to deal with community property, how to bypass the probate court and transfer a small estate by a simple affidavit or through “summary” proceedings, how to handle joint . 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. like too much to deal with. This book can help. How to Probate an Estate in California explains the major steps required to settle a simple California estate. It uses plain English to make