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 Probate Court
 Property Transfers at Death
Simplified Probate
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Probate Court
Simplified Probate Procedures
[Esta página está en español;
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 California has "simplified procedures" for transferring property when the
estate is worth under a certain amount (from $20,000 to $100,000 depending on
the circumstances and the kind of property).
Click on a topic to learn more:
- What do I do with property held in joint tenancy after the other
tenant dies?
- What if the person who died had $20,000 or less in assets?
- What if the decedent’s assets are worth $100,000 or less?
- What if the decedent’s real property in California is worth $20,000 or
less?
- Can the Court make an Order to clear title to real and personal
property worth $100,000 or less?
- What is a Spousal Property Petition when there is a surviving spouse?
- How do I get a decedent’s insurance proceeds and retirement death
benefits?
- What do I do with property held in joint tenancy after the other
tenant dies?
Click on a topic to learn more:
What is joint tenancy?
Joint
tenancy is a way for two or more people to own property in equal
shares so that when one of the joint tenants dies, the property can pass
to the surviving joint tenant(s) without having to go through probate
court.
Does joint tenancy have tax implications?
Yes. If a joint tenant dies, the property is included in his or her
taxable estate.
Talk to a lawyer before putting property in joint tenancy or ending a
joint tenancy.
How do I create a joint tenancy?
You must have a written document, like a deed to
real property or title to a car, that says the property is in joint
tenancy with the names of the joint tenants.
What kinds of property do people put in joint tenancy?
The most common assets owned jointly are real property (land or
buildings), bank accounts, stocks and bonds and automobiles.
How do I change the title on real property after the
other tenant dies?
You do not have to go to court. But, you need:
- A certified copy of the death certificate of the joint
tenant who died
- An
Affidavit signed by “anyone with knowledge of the facts”
You can change the tile using a form called “Affidavit of Death of
Joint Tenant.” [See the Sample Affidavit below.]
There may be tax consequences. So, talk to a lawyer before you record the
Affidavit. top of page
↑
How do I prepare an Affidavit?
You can use this Sample Form. It is not an official form, but you can use
it for most cases.
Click here to download this sample form
in PDF format. (Sample Form)
AFFIDAVIT OF DEATH OF JOINT TENANT
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
I, [affiant's name], being duly sworn, say:
I am 18 years of age or over. The decedent
described in the attached certified copy of Certificate of Death is the same person as [name
of person who died here], who is named as one of the parties in the deed dated [date],
executed by [name of grantor] to [name of decedent] and [name of
surviving joint tenant], as joint tenants, recorded on [date], in [ e.g.,
Book __, page __] of the Official Records of Santa Clara County, California, covering
the property situated in [city], Santa Clara County, California, described as
follows:
[Provide legal description]
Dated: _______ __[Signature]___
___[Typed name]_
Affiant
Subscribed and sworn to before me on [date]
___[Signature]___
___[Typed name]__
[Seal] Notary Public for the
State of California
To read more about the law on this topic, see Probate Code
Section 210-212.
How do I record an Affidavit?
Take a certified copy of the death certificate of the deceased joint
tenant and your affidavit to the recorder's office in the county
where the real property is located.
How do I handle bank accounts held in joint
tenancy?
In most cases, you can remove the deceased person’s name from the
accounts by taking these documents to the bank:
- A certified copy of the death certificate of the
deceased joint tenant, and
- A check drawn for the balance of the checking
account, or
- The savings account passbook.
How do I handle vehicles held in joint
tenancy?
The National Automobile Club of California and the California State
Automobile Association (AA) will help you get the ownership
certificate and the registration card reissued.
Take the documents listed below to the club office closest to you.
You can find the address in your phone book. They will give you a
temporary ownership certificate and send your documents to the
Department of Motor Vehicles (DMV) for re-issuance.
- The ownership certificate signed by the surviving
owner,
- The registration card,
- A certificate of compliance with the smog-pollution
control law (if the deceased joint tenant is not the grandparent,
parent, sibling, child, grandchild, or spouse of the surviving joint
tenant.) See Vehicle Code
Section 4000.1(d) (2), and
- A certified copy of the death certificate for the
deceased joint tenant.
How do I handle securities held in joint
tenancy?
Take or mail the following documents to the transfer agent at the
financial institution:
- A certified copy of the death certificate of the
deceased joint tenant, and
- The original stock certificate (if the deceased
joint tenant had one).
There may be tax consequences. So, talk to a lawyer first.
- What if the person who died had $20,000 or less in
assets?
If the deceased person’s real and personal property is worth $20,000 or
less, the spouse or
minor children can ask the court to "set aside" the estate. This is
much easier than a full probate proceeding. top of page
↑
If you want the court to set aside the estate, you can use this Sample
Form. It is not an official form, but you can use it for most cases.
Click here to download this sample form in PDF format.(Sample Form)
Petition to Set Aside an Estate
[Title of court]
The Estate of [decedent]) No._ _ _ _ _ _
PETITION FOR ORDER TO SET ASIDE ESTATE NOT EXCEEDING $20,000
_ _[Name of Petitioner]_ _alleges:
1. _ _[Name of decedent]_ _died on_ _[date]_ _, and at the time of _ _[his/her]_
death was domiciled in Santa Clara County, California, and left an estate, the net value
of which, above all liens and encumbrances at the date of death and the value of any
homestead interest set aside from the decedent's estate under Probate Code §§6520 and
6521, but exclusive of all property in which the decedent held a life interest or held as
a joint tenant, does not exceed $20,000.
2. The estate consists of the following property:_ _[Describe property and give
estimated value]_ _.
3. Liens and encumbrances on the property at date of death were as follows: __[Describe
liens and encumbrances and state amounts]_ _.
4. Petitioner(s) _ _[is/are]_ _the_ _[ executor
named in decedent's Will/spouse of the decedent/guardian of decedent's minor
child/personal representative of decedent's estate/decedent's adult child who was a minor
on the date of decedent's death]_ _and _ _[is/are]_ _entitled to an assignment
of the entire estate under the provisions of California Probate Code
Sections 6600-6615 as
follows:_ _[State proposed disposition
of estate]_ _.
5. All expenses of the last illness, the funeral, and administration_ _have been
paid/will be paid before the hearing on this Petition]_ _.
6. The names, addresses, ages, and relationships of all heirs, legatees, and devisees
of the decedent are as follows:_ _[List]_ _.
WHEREFORE, Petitioner prays that the entire estate be assigned to _ _ _ _, that there
be no further proceedings regarding the estate, and that such other relief be granted as
the court considers proper.
Dated: _ _ _
_
__[Signature]__
_ _ [Typed name]_ _
Petitioner
__[Signature]__
_ _[Typed name]_ _
Attorney(s) for Petitioner
Do I have to include all property to calculate the value of the
estate?
You do not have to include property held in joint tenancy,
multiple-party accounts, or pay-on-death accounts. But, you must
include the decedent's share of any community property.
Who has to pay the decedent’s debts?
If the Court sets aside the estate, the surviving spouse or children
have to pay the decedent's unsecured debts up to the value of the
estate, minus liens
and homestead or other exempt property.
If you get the estate, you are responsible for the decedent’s debts
for one year unless the creditor files a court action
during that year.
There may be tax consequences. So, talk to a lawyer first.
To read more about the law on this topic, see Probate Code
Section 6600.
- What if the decedent’s personal and real property is
worth $100,000 or less?
You can collect the decedent’s personal property and distribute it to
the heirs (or the beneficiaries
named in the Will) by using a declaration.
This method is called the
Section 13100 Procedure.
This procedure has certain rules:
- You can’t use it to distribute real property (land or
buildings)
- You can use it for property that would automatically
pass to a spouse
- You must wait 40 days after the decedent dies before you
can collect or distribute the decedent’s assets
- You must give a written declaration to the person or
agency that has the property or is in charge of the transfer of the
property
To read more about the law on this topic, see Probate Code
Section 13100.
top of page
↑ What if the person dies without a Will?
If the decedent dies without a Will, the only people who have the right to
collect his or her property are:
- heirs,
- conservator
or guardian of the estate of any heir,
- trustee
of a trust
created by the decedent (inter vivos trust) for the benefit of an heir,
or
- any other successor
allowed under the law.
If the decedent dies with a Will, only the beneficiaries under the Will
are entitled to collect.
- What if the decedent’s real property in California is
worth $20,000 or less?
To transfer the real property, use California Judicial Council Form
DE-305, Affidavit Re: Real Property of Small Value ($20,000 or Less).
After filling it out, sign it in front of a notary. The form will ask you
for an inventory and
appraisal and a description of the real property.
There are certain rules for this procedure:
- It is not for joint tenancy. (See joint tenancy above.)
- Any heir or beneficiary can use it.
- The value of the decedent's personal property does not
matter.
- You must file your form with the Clerk of the Superior
Court. You will have to pay a fee. (See fee listed for "Filing affidavit
under Probate Code 13200" on the
Probate Fee Schedule).
- If the decedent had a guardian or conservator when
s/he died, you must mail them a copy of the completed form.
- There must not be a current or past probate proceeding.
Or, if there is a probate proceeding
pending:
- The personal representative consents in writing to this procedure.
- It has been at least 6 months since the decedent died.
- All of the decedent's unsecured debts have been paid.
If you need a marketable title (title that is free from any defects or
reasonable doubts about who has title) to the property, take a certified
copy of your filed form to the County Recorder of the county where the
real property is located.
To read more about the law on this topic, see Probate Code
Section 13200.
- Can the Court make an Order to clear title to
real and personal property worth $100,000 or less?
Yes. If you are an heir or beneficiary, you can ask the Court to make an order
to clear title. You can do this to transfer:
- real property only, or
- real and personal property
You cannot do this for personal property only. To transfer only
personal property, use the Affidavit or declaration procedure.
You do not have to include property outside of California, held in joint
tenancy, in a revocable living trust, in pay-on-death accounts, passing to
the surviving spouse under a Spousal Property Petition, or other property
as explained in Probate Code
Section 13151.
There are certain rules:
Or, if there is a probate proceeding pending:
- The personal representative must consent to this
procedure in writing.
- It must be at least 6 months since the decedent
died.
- All of the decedent's unsecured debts must have been
paid.
 Fill
out form
DE-310,
Petition to Determine Succession to Real Property. You can use this
form for clearing title to personal and real property, too.
File the form with the Court Clerk. The Clerk will assign a hearing
date. You must have notice
of the hearing served to the person listed on paragraph 14 of
DE-310.
Someone 18 or over and not involved in this case must serve the
notice. Use form
DE-120
to prove that notice has been given. File this completed form along
with any other documents required on
DE-310.
You must also fill out
DE-315,
Order Determining Succession to Real Property (Estates $100,000 or
less), and give it to the clerk’s office at least 4 days before the
hearing.
If the Court approves the Petition, the judge will sign the Order
and give it back to you. Take the signed order and file it in the
Clerk's Office.
If you need a marketable title (title that is free from any defects
or reasonable doubts about who has title) to real property
transferred to you by the Order, take a certified copy of your filed
Order to the County Recorder of the county where the real property
is located.
If you receive property under this procedure, you will be
responsible for the decedent's debts, up to the fair market
value of the property you received as calculated at the time of
death. top of page
↑
- What is a Spousal Property petition when there is a
surviving spouse?
A Spousal Property
petition
is a way to transfer or confirm property to a surviving spouse without a
full probate proceeding. It can usually be done with only one hearing in
the court. If the decedent’s estate is not complicated, the petition can
settle questions about title or ownership of property.
Who can file a Spousal Property petition?
- The surviving spouse,
- The representative of a surviving spouse's estate (if
the surviving spouse is also now deceased), or
- The conservator of the surviving spouse's estate.
How do I file a Spousal Property petition?
- Fill out and file form
DE-221
explaining why the property belongs or should legally pass to the
surviving spouse and describing the property.
- Attach a copy of the decedent’s Will (if there is a
Will).
- Attach a copy of the agreement
(if the description of the property as a community
property is based on a written agreement between the
decedent and the surviving spouse).
Will there be a Court Hearing?
Yes. When you file your forms, the clerk will tell you the hearing date.
At the hearing, the judge will decide whether to grant or deny your
petition.
Do I have to do anything before the hearing?
Yes. At least 15 days before the hearing, you must have the following
people served (given) a Notice of Hearing (by mail or in person):
- The executor or administrator of the estate (if a
probate of the estate has been started in court).
- All heirs of the deceased spouse.
- All persons who have an interest in the estate and have
asked for Special Notice (Probate Code
Section 1250).
- The Attorney General of California (if the Petition is
based on the deceased spouse’s Will and if the Will involves a
charitable bequest
or devise
when there is no identified trustee resident in California or no
identified legatee, devisee, or beneficiary).
Do I need an Order for a Spousal Property Petition?
Yes. You must fill out
DE-226,
Spousal Property Order and give it to the clerk’s office at least 4 days
before the hearing. Please attach a note to this form with the date of
your hearing.
If the Court approves the Petition, the judge will sign the Order and give
it back to you. Take the signed Order and file it in the Clerk's Office.
Talk to a lawyer to see if you will be responsible for the decedent's
debts.
- How do I get a decedent’s insurance proceeds and
retirement death benefits?
Life insurance proceeds
Find all the decedent’s life insurance policies, if available.
You may be able to get them from:
- The insurance company or companies
- Credit card companies (like, insurance for credit card debt)
- Fraternal organization or club memberships
- The employer (Group life insurance)
- The military
Then:
- Find out who the beneficiaries of the policy are.
- Contact the decedent's insurance agent or broker.
- Advise the insurance company of the decedent's name,
date of death, policy number and who the beneficiaries are.
- Send a certified copy of the decedent's death
certificate along with the claim form to the insurance company.
- Ask the insurance company for a proof of claim form.
Retirement benefits
Find out the amount of the benefit, the entitled beneficiaries and the
payout options.
Send a certified copy of the decedent's death certificate along with the
claim form to the company.
Talk to a tax consultant to learn about your options and the tax
implications.
Some companies have Human Resources Departments that help employees and
their families understand retirement/employee benefits.
Other companies may require you to consult with a bank or institutional
trustee, a life insurance company or a commercial pension administrator. top of page
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