
Historically, there were several procedures for a surviving spouse or heirs of a Decedent to collect property of a Decedent in California.
Standard Probate Proceeding
Most people are familiar with the concept of a “Probate” which specifically means (1) filing a Petition to appoint a person as administrator of the Estate, (2) notifying creditors and collecting assets, and (3) filing a separate petition to approve an accounting and proposed final distribution, including fees and costs. This procedure could take between nine months to a year, and involved a statutory structure of fees based on the size of the Estate.
Exceptions to the need for a full Probate
There were and are, exceptions to the need for a full Probate proceeding. The first major exception was that a surviving spouse could bring a petition known as a “spousal property petition” to collect the real and personal property of a decedent which would pass to the surviving spouse under California’s intestate succession statutes, or by the Decedent’s Will. The limitation of a spousal property petition is that it only applies to property passing to the spouse. So, if the Decedent had separate property and children, the spousal petition would not dispose of the entire estate and a full probate proceeding would be needed in for the property not to pass to the surviving spouse.
The second major exception was for small estates. If the value of the property (both real property and personal property) of the Decedent did not exceed $184,500, the heirs could do two things. First, they could collect personal property (cars, bank accounts) via a declaration (under California Probate Code 13100, typically referred to as a “13100 declaration”) submitted to the institution or other person holding the property. If there was real property, and that property (along with any personal property) was worth less than the $184,500, a one-time petition for succession to such property could be filed with the Probate Court.
The amount of the 13100 declaration was originally $166,000, and was adjusted upward to the $184,500 for the three year period from April 1, 2022 through April 1, 2025. On April 1, 2025 it will be adjusted again to account for inflation.
The new exception under Probate Code 13151 for the primary residence of the Decedent with a value of $750,000 or less.
This year brings a significant change to the procedures set forth above. For Decedents dying on or after April 1, 2025, theew is a new petition available for succession to the primary residence of the Decedent provided such residence has a value of $750,000 or less. This procedure is completely new. It is not limited to the surviving spouse of the Decedent, but would include all intestate heirs and devisees under a Will. It is in addition to the personal property declaration procedure amount of assets with a value under $184,500 (which will be adjusted upward on April 1, 2025). As to real property, it replaces the old limitation of $184,500 which applied to a petition for succession to real property. It does not include, as part of the petition, personal property (so, if the Decedent died with, for example, a primary residence worth $675,000 and $400,000 in bank accounts a full probate would still be necessary for the $400,000 in bank accounts). Finally, the term “primary residence” is not defined in the statutes. However, Probate Code Section 13150(b)(2) states that the “primary residence” is not limited to the decedent’s residence at time of death. One obvious application of this rule would be for a decedent who had a residence but was residing in assisted living facility at the time of death. But it is clear that if a decedent owned several homes only one could be the “primary residence.”
As mentioned above, the $184,500 amount is to be adjusted for inflation effective April 1, 2025, and then both the $184,500 amount and the $750,000 amount are to be adjusted for inflation on April 1, 2028 (a three-year cycle).
This new petition will be similar but more expansive than the prior succession to real property, in that (a) the petition must give notice to all intestate heirs, executors named in the Decedent’s Will, all devisees under such Will, and, if a Trust is the beneficiary, all trustees and trust beneficiaires (b) the petition must contain facts to establish that the real property in question is the primary residence of the Decedent, (c) the petition must be accompanied by a valuation of the property by a Probate Referee, and (d) the petition must state the facts upon which the Court will find that the property passes to the petitioners.
Contact the top-rated California trust and probate attorneys Moravec, Varga & Mooney today to schedule a telephonic consultation. Have questions, call (626) 460-1763 or email LV@MoravecsLaw.com.
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