9 Exceptions To Probate
Updated: Oct 18
What are 9 exceptions when probate is NOT necessary to transfer or sell a home?
1) Living Trust
This legal document is set up during the life of a person to distribute money or property to a person or organization. If a property is vested to a Living Trust, probate is not required.
2) Joint Tenancy
When a property is owned by two or more persons, in equal shares created by a single will or transfer. There is a right of survivorship for Joint Tenancy.
If ALL joint passed away then a probate would be necessary.
3) Community Property
If a married couple acquired a property and it is vested in Community Property, each spouse has 50% control of the property. Title will pass to the surviving spouse unless the deceased spouse left a will.
Theoretically, each spouse can will their 50% share to anyone or thing they choose. If this is the case the surviving spouse may need to go to court and then probate might be necessary.
4) Community Property with Right of Survivorship
If title to the home is vested in Community Property with Right of Survivorship the surviving spouse automatically gets the house.
5) Revocable Transfer on Death Deeds (RTOD)
This allows a person to transfer certain types of real property without probate or a trust using the RTOD. A homeowner can add one or more beneficiaries to the RTOD and then the property will transfer automatically upon death without probate.
There are some guidelines:
The distribution must be in equal shares if there are multiple beneficiaries.
RTOD must be witnessed by two impartial witnesses and notarized. It must be recorded no later than 60 days after being notarized.
The property must be used for a residence. This is defined as:
1-4 Residential Dwelling Units
Agricultural Real Estate
40 acres or less
Improved with a single family home
6) Spousal Property Petition
If a person dies with or without a will and has a surviving spouse or registered domestic partner, the surviving spouse or partner may file a Spousal Property Petition.
The house must be acquired during marriage.
This is used when home is community property and surviving spouse wants to sell them home.
All heirs must receive notice of the petition and the court date.
7) Heggstad Petition
When a person has a trust they will typically deed the home into the trust. A new grant deed will make the trust the owner of the home. If the homeowner wants to refinance the home, the lender will often have them deed the house out of the trust and back in to their name.
This can become an issue if, after the refinance, the home is not deeded back into the trust. The Heggstad Petition was named after the1993 case Estate of Heggstad (1993) 16 CA 4th 943 that allowed the home to be put back in the trust. A Heggstad Petition will be successful depending on the facts of the situation.
If there is a trust with Schedule A which lists the property and a Pour-Over Will there is a good chance it will be successful.
8) Affidavit RE Real Property of Small Value
Any type of real property with a value of less than $61,500 on the date of death and six months have elapsed since the date of death.
No probate is being conducted in California for the estate.
Must use a probate referee to appraise the value of the property and complete the Inventory and Appraisal form DE-160.
All funeral expenses and all know unsecured debts have been paid.
Does not require a court hearing but all heirs must sign off on it.
9) Petition to Determine Succession to Real Property
Any real property valued between $61,500 - $184,500 you can use this process.
40 days must have lapsed since the death and no probate is being conducted in California.
A probate referee can be hired to complete the Inventory and Appraisal form DE-160.
This will require that all hears are given notice and a court hearing to be approved by a probate judge.
Broker Associate, Realtor®
Windermere Homes & Estates
call or text 760-613-1626
CA DRE Lic# 01809365