Simplified Probate Procedures

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?

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

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.

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.

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.

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 ORANGE

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.

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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. The recorder’s office also requires a Preliminary Change of Ownership Report (PCOR) when filing the affidavit.

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.

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.

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.

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For a person who died on or after April 1, 2025, the net value of the estate must not exceed $107,900 for the small-estate set-aside procedure under Probate Code sections 6600-6613.

This procedure may allow the court to set aside the estate for the surviving spouse, registered domestic partner, or minor children. The $107,900 limit is calculated after subtracting liens and encumbrances and any probate homestead described in Probate Code section 6520.

Use the threshold that applies on the date of death:

• Before April 1, 2022: $85,900.
• April 1, 2022 through March 31, 2025: $95,325.
• On or after April 1, 2025: $107,900.

Current threshold reference: Judicial Council form DE-300.

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

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.

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 .

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For a person who died on or after April 1, 2025, a successor may use the Probate Code section 13100 affidavit procedure when the qualifying California estate does not exceed $208,850.

This procedure is generally used to collect personal property. It does not itself transfer real property. The successor must wait at least 40 days after the death and provide the required affidavit or declaration to the person or agency holding the property.

Use the threshold that applies on the date of death:

• Before April 1, 2022: $166,250.
• April 1, 2022 through March 31, 2025: $184,500.
• On or after April 1, 2025: $208,850.

Review the property exclusions and required steps in the California Courts Self-Help guide before using this process.

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.

For a person who died on or after April 1, 2025, the gross value of all qualifying California real property must not exceed $69,625 to use the Probate Code section 13200 affidavit procedure.

Use form DE-305, Affidavit re: Real Property of Small Value. At least six months must have passed since the death. The filing must include the required inventory and appraisal, and the affidavit must be filed with the superior court in the county where the real property is located.

Use the threshold that applies on the date of death:

• Before April 1, 2022: $55,425.
• April 1, 2022 through March 31, 2025: $61,500.
• On or after April 1, 2025: $69,625.

For a person who died on or after April 1, 2025, a successor may petition the court to determine succession to a California primary residence with a gross value of $750,000 or less under Probate Code sections 13151-13154.

Use form DE-310, Petition to Determine Succession to Real Property, and prepare form DE-315 for the proposed order. The petition requires a court hearing and notice to the persons identified on the form. Property that is not the decedent's primary residence is not eligible for the $750,000 limit.

For deaths before April 1, 2025, the earlier limits and procedures apply. Confirm the date-of-death threshold on form DE-300 before filing.

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.

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.

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