Checklist – Preparation For Probate Petition And Hearing

Checklist – Preparation For Probate Petition And Hearing

1. Locate and Contact Heirs and Beneficiaries.  A petitioner must notify the heirs and beneficiaries of the probate petition.  The standard is to make a reasonable effort to do so.  This includes names, addresses, and relations of the heirs at law and the will beneficiaries.  Heirs and beneficiaries have the right to challenge a will.  So, they must receive notice.
2. Characterize the assets – which assets are subject to probate?  Are there any assets NOT subject to probate that may pass as a matter of law?

 
 
Assets Not Subject To Probate:

• Community property assets that pass to surviving spouse or registered domestic partner.
• Assets held as joint tenancy.
• Assets with beneficiary designations such as retirement accounts, life insurance policies, annuities, and payable on death bank accounts.
• Trust assets.
• Life estates. 

Assets Subject To Probate:

• Although the list above is not exhaustive, it’s close.  And, assets not listed above most likely are subject to probate. 

1. Are any summary proceedings available?  Summary proceedings are more straightforward and less time-consuming than an entire probate proceeding.  These are excellent remedies when the value of the estate is small, there will be no adverse tax consequences, the number of successors in interest to the decedent's assets is minimal, the decedent had few or no debts or liabilities, and there are no disputes about entitlement to the property.  There are five types of summary proceedings:
   1. Collection of personal property in small estates by affidavit or declaration under Prob C §§13100–13116;
   2. Succession to real property within California by one of the following two methods, depending on the gross value of all California real property in the estate:
      1. If real property gross fair market value is under $55,425 or
      2. If real property gross fair market value is over $55,425 and the total estate value does not exceed $166,250, a summary court proceeding to determine succession to real property and any additional personal property under Proc. C. §§ 13150-13158.
   3. Transfer to surviving spouse, registered domestic partner, minor child, or another dependent:
      1. Setting aside small estate. Prob C §§6600–6615
      2. Passing property to a surviving spouse or registered domestic partner.  Prob C §§13500–13554.
      3. Determining and confirming by court order property passing to a surviving spouse or registered domestic partner. Prob C §§13650–13660.
2. Can you file a Heggstad Petition?  A Heggstad Petition is a remedy used to avoid a full probate administration.  Under California Probate Code 850, a trustee or beneficiary can request that the court order that property not correctly titled in the decedent’s trust be considered a trust asset.  And, when an asset is a trust asset, it transfers according to the directions in the trust instrument.   
3. Publish and File the Will.  There is no reading of the will!  That only happens on TV; however, the will must be filed with the probate court, whether or not a probate proceeding has been opened.

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