Since California offers some shortcuts to surviving spouses and smaller estates in its probate courts, it’s important to have an experienced San Jose real estate lawyer to help you navigate the courts. These “shortcuts” make it easier for you to facilitate property transfers after the death of your spouse. By using an affidavit, you skip the probate process completely. To property complete the process you need a San Jose real estate lawyer to guide you through the process.
Spousal Property Petition
A Spousal (or Domestic Partner) Property Petition allows assets left to the surviving spouse or partner to be transferred efficiently. The petition is filed with the probate court for approval. There is no dollar value limit on the amount of property that can be transferred by a Property Petition.
Property Claims Using an Affidavit
If the value of the deceased assets fall below a predetermined amount, California allows survivors to skip the probate process completely. By working with a San Jose real estate lawyer, you complete a short affidavit which states you are entitled to the deceased’s assets. You sign the document under oath. When the financial institution or party that holds the property gets the affidavit with a certified copy of the death certificate, it releases the property to you as survivor. An out-of-court affidavit is used when:
- The estate’s value doesn’t exceed $150,000 when calculated using the exclusions shown below. California courts require a 40-day waiting period.
- The estate’s real estate property doesn’t exceed $50,000. Under this section of the Probate Code, there is a 60-day waiting period.
For small estates, California offers a simplified probate process. As executor, you file a request in writing with the local probate court requesting to use the simplified process. The court can, at its discretion, allow you to allocate the assets without going through the standard probate process. If the value of the estate is $150,000 or less, you can use the simplified process. There are items that are excluded from the calculation of the estate’s value including:
- Real estate owned outside of California;
- Joint tenancy property (meaning the property is titled jointly to the deceased and another person);
- Property that transfers directly to the surviving spouse;
- Life insurance proceeds, death benefits from other sources such as retirement plans, or other assets that pass directly to specific, named beneficiaries;
- Accounts owned by multiple parties and/or payable upon death accounts;
- Registered manufactured homes, motor vehicles or numbered vessels
- Salary up to $15,000;
- Any amount due to the deceased from the US Armed Forces; and
- Property held in a living trust.
Contact a San Jose Real Estate Lawyer at The Freed Law Firm
If you think you many qualify for the simplified probate process or avoiding probate all together, contact the experienced attorneys at The Freed Law Firm by calling 831.661.0300. Their experience with the probate courts make them the best choice for a San Jose real estate Lawyer.