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Simplified Probate Procedures

WHAT DO I DO WITH PROPERTY HELD IN JOINT TENANCY AFTER THE OTHER TENANT DIES?

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.

Are there any pitfalls to joint tenancy?

Yes. If a joint tenant died and puts in a will or trust that his or her share would pass to a person other than the surviving joint tenant, the joint tenancy would override his or her wishes. If it is not your intention for the co-owner of an asset to inherit your share, you should not enter into a joint tenancy. Talk to a lawyer about other ways to share title to property.

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 title 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.

HOW DO I PREPARE AN AFFIDAVIT?

You can use the Sample Form. It is not an official form, but you can use it for most cases.

(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 (AAA) 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.

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.

(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 cannot 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 .

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 local 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:

  • All heirs or beneficiaries to the decedent’s property must join with you in your request to the court (by signing the petition).
  • There must not be a current or past probate proceeding.

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.


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.


HOW CAN I FIND A PROBATE LAWYER OR LEGAL AID?

You can find a probate lawyer from the list of lawyer referral services located on the Self-Help Resources website page.



© 2014 Superior Court of Orange County