California Partition Law Blog
An order determining succession to real property is an alternative petition to get a court order transferring the property. (Prob. Code § 13154.) If the estate is small enough, and a successor to the decedent has proof that they are entitled to a certain piece of property, then they may use this process to become a title owner.
Naturally, though, the process is much more complicated than it may seem. Only certain individuals may file the petition, and only certain types of estates even qualify. Therefore, in order to ensure compliance, litigants should take care to get themselves the right attorneys for the job. At Underwood Law Firm, our attorneys are well-read on real property transfers and ready to assist.
When can an order determining succession to real property be used in Probate Court?
A full probate proceeding is not always needed when someone passes away. For smaller estates, the process is simply unnecessary because there are usually not many creditors or claimants. In addition, probate is both expensive and time-consuming, with larger estate takes months or even years to fully clear. As such, for smaller estates, property may pass and be transferred via petitions.
But in order for this petition process to even apply, there are several important preliminary items that must be satisfied, otherwise the court will not bother hearing the petition.
First, the total gross value of both the decedent’s real and personal property must be relatively small; specifically, it cannot exceed $166,250. (Prob. Code § 13154.) As discussed below, staying beneath this number can actually prove to be quite difficult. And second, there is a 40 day waiting period. This means that a petition proceeding cannot even begin until it has been 40 days since the decedent passed away. (Id.)
These prerequisites are absolutely mandatory in order to pass property via petition. The petition itself has many requirements, but before a potential litigant even considers this option, they should check to make sure these two requirements have been met.
How is the decedent’s estate calculated?
Calculating the value of a decedent’s estate can be quite complicated. First, for the purposes of the probate code, what is “included” in the estate depends on the type of property. If it’s personal property, then all of it is included in the estate, regardless of where it might be located. (Prob. Code § 6600.) Thus, for example, a decedent’s out-of-state bank account is calculated in valuing the estate. It doesn’t matter that it may be located outside of California.
Conversely, when it comes to real property, only that located within the confines of California is included in the calculation. (Id.)
Lastly, there’s joint property. Under the probate code, if the property was held by the decedent as a joint tenant, then it’s excluded in determining the estate of the decedent. (Id.) The logic behind this is that joint tenancies are governed by the right of survivorship, meaning that when a joint tenant dies, whatever interest they had in that parcel of property is extinguished automatically by the operation of law. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 156.)
Naturally, this same line of thinking doesn’t apply when the property is co-owned in another form, such as in a tenancy in common. There, the value of the decedent’s joint interest would be included in calculating the value of the estate because the right of survivorship doesn’t exist unless property is owned in joint tenancy form.
Who may bring the petition?
Once a litigant has determined that Probate Code section 13150 is applicable, the next question they must ask is whether they are entitled to bring a petition to determine succession. Under the code, a proper petitioner is a “successor of the decedent to an interest in a particular item of property that is real property.” (Prob. Code § 13151.)
“Successor of the decedent” can encompass many individuals. If the decedent died with a will, then any of the beneficiaries named under the will or instrument qualify as a successor. (Prob. Code § 13006.) Alternatively, if the decedent didn’t have a will, and the property will instead pass through the laws of intestate succession, then anyone who is entitled to take qualifies as a successor. (Prob. Code § 6402.)
Not every successor may petition, though. Instead, they must be a successor to a “particular” item of property. This means a specific item of either personal or real property. (Prob. Code § 13004.) In essence, this has the effect of preventing a petitioner from seeking a court order to receive an item of property they would not otherwise be entitled to. If a decedent left his car to his son in a will, the daughter could not file a petition seeking that same car.
What has to be in the petition?
Once a litigant has determined that the estate qualifies for this section, and that they are a valid successor, they can finally proceed with the petition. The petition itself, however, has several important requirements, with the three most important being highlighted here.
First, the petition needs to have an appraisal of the estate. (Prob. Code § 13152.) Importantly, this appraisal must be done professionally. A litigant cannot go cataloging items on their own, and then submit an excel sheet with their estimations of value. Instead, the appraisal can only be complete by an official probate referee appointed by the Office of the Controller. (Prob. Code §§ 400, 8800.)
Second, the petition needs to have the requisite facts. The petitioner needs to set out that the court is proper (the petitioner filed the petition with the correct venue), needs to describe the property being claimed, and why the petitioner is entitled to claim it. For example, if there’s a will, the petitioner will need to submit a copy of it.
Lastly, the petition needs to have information pertaining to notice. This means including the names, addresses, ages, and relations of each heir and devisee of the decedent, in addition to trustees or executors if applicable. This is required so that the petitioner may not attempt to convey to the court that they alone are the sole heir of the estate.
How the Lawyers at Underwood Law Firm Can Help
Probate proceedings can be emotional rollercoasters. In addition to dealing with the grief of loss, litigants must also be ready to fight for their rights in property, lest they be swept up by someone else. Fortunately, the lawyers at the Underwood Law Firm are here to help. If you have found yourself in one of these situations, then please do not hesitate to contact us today.