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October 19, 2012

Bradley Liggett: collecting real estate outside of probate

by Bradley Liggett, Attorney and Counselor at Law

Republished with permission from Bradley Liggett’s excellent Estate Planning blog over at www.sloestateplanning.com.  

As I discussed in my last post, certain items of property are exempt from the probate process and can be transferred without probate. Real estate can be collected without probate as long as the real estate AND the other non-exempt property in the estate is worth $150,000 or less. There are two methods to collect real estate outside of probate.

Petition to Determine Succession to Real Property

Mr. Liggett focuses his legal practice on helping his clients to create an estate plan tailored to their individual circumstances and wishes. Contact him with your questions by email at brad@sloestateplanning.com or by phone at 805.203.0530.

The first way to collect real property without probate is to file a Petition to Determine Succession to Real Property with the probate court. You must wait to file the petition until 40 days after the deceased’s death. The court will give you a hearing date when you file. If everything is in order and there are no objections, the court will issue an order confirming that you now own the real property. You can also include personal property that you would like transferred to you in the petition.

Affidavit of Property of Small Value

Another option for collecting real estate without probate is by recording an Affidavit of Property of Small Value with the county recorder where the property is located. However, you have to wait 6 months after the date of death to record the affidavit. There are two main drawbacks to this method. First, the gross value of the real property must be $50,000 or less, which is rare in California. Second, the executor of the estate can request that the property be put back into the probate estate if the executor decides that a formal probate is necessary. The Executor has 3 years to make the request.

Above all, there are always options for avoiding probate to explore when a loved one dies without a trust or will.

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