Can the transfer be done outside probate court? To find the answer, first look at the last transfer deed.
Huntington Beach, CA (PRWEB) February 23, 2017
The procedure to use for the post-death transfer of real property located in California will depend on how the decedent owned the real property. Decedent’s ownership will be either jointly with another person, in the decedent’s name only, in a trust or by revocable transfer on death deed. This Tip Sheet by Mark W. Bidwell matches ownership with the procedure to follow.
The first step is to look at the last transfer deed evidencing how the decedent owned the real property. The deed will be found at the recorder’s office in the County where the real-property is located. In California co-ownership is as a tenant in common, as a joint tenant, as community property with right of survivorship or as a co-trustee.
Real property in California owned as a joint tenant, as community property with right of survivorship or as co-trustee transfers to the surviving owner. The surviving owner files an affidavit of death in the county where the real property is located to establish sole ownership. If the joint owner preceded the decedent in death, the real property is treated as if it were owned by the decedent only.
The procedure to transfer real property owned in the decedent’s name only or as a tenant in common will depend on the real property’s fair market value as of date of death. The break out is less than $50,000, $50,000 to $150,000 and over $150,000.
California law has a shortcut, or expedited probate procedure for real property less than $50,000 in value known as “Affidavit re Real Property of Small Value.” No court hearing is needed. This procedure is primarily available for timeshares, mineral rights, and undeveloped land away from the coast.
"Succession to Real Property" is available for real property valued at less than $150,000 but more than $50,000. This procedure is shorter than formal probate administration as it requires only one court hearing. The transfer is at the court’s discretion based on the evidence introduced at the hearing.
Real property with a market value greater than $150,000 requires formal probate administration. Probate is the administration under court supervision of a decedent’s estate as directed in his or her Will or by the laws of intestacy. Formal probate requires at a minimum two court hearings, three court orders and one year to complete.
Real property owned by the decedent’s trust is transferred by the successor trustee to the beneficiaries of the trust without any court supervision. Transfer is by an affidavit of death of trustee and a deed from the trust to heirs. Both documents are submitted to the county recorder.
A final procedure is the “revocable transfer on death deed.” This deed does not change ownership of the real property until the owner dies. This type of deed identifies who is to inherit the real property. The owner maintains control of the real property while living and avoids probate on death.
The procedure to use for the post-death transfer of real property located in California will depend on how the decedent owned the real property. Decedent’s ownership will be either jointly with another person, in the decedent’s name only, in a trust or by revocable transfer on death deed. Ownership in the decedent’s name only requires approval from the probate court. All other ownership transfers can be made outside of probate court.
This press release is provided by Mark W. Bidwell. Mr. Bidwell markets through websites such as http://www.deedandrecord.com. Office is at 4952 Warner Avenue, Suite 235, Huntington Beach, California 92649. Phone is 714-846-2888.