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Revised California Probate Code 13150 – NEW LAW

I already told you that California probate code sections 13100 and the sections thereafter are going to be updated for 2012.  The law has been set at $100,000 for California “small” estates since 1996. Before that it had been $60,000. The new law, authored by Assemblywoman Huber, will raise the bar to $150,000 that can be transferred after death without a full probate.  This change includes probate code sections 13150 and thereafter regarding petitions to transfer real estate without a full probate.  It should be noted that this does not mean that probate Court work isn’t needed for people who own real estate in California worth less than $150,000. That is, if you die with real estate worth up to $150,000 in GROSS value (not net) your loved ones will still have to go to probate Court to clear title to your property.  Thus a living trust remains a very viable option for most people in California who own real property. However, the new limits will allow some modest homes to avoid full probates after death and save a few dollars for the family members with the expedited probate process.  I have pasted below the California legislative history for California Assembly Bill 1305 (AB 1305) and also the current law for California Probate Code section 13150.  You can change $100,000 to $150,000 in those sections to reflect the new law.

Contact me to discuss your case and how we can help you!  -John

 

COMPLETE BILL HISTORY
BILL NUMBER  : A.B. No. 1305
AUTHOR : Huber
TOPIC : Decedents’ estates: smaller estates.

TYPE OF BILL :
Inactive
Non-Urgency
Non-Appropriations
Majority Vote Required
Non-State-Mandated Local Program
Non-Fiscal
Non-Tax Levy

BILL HISTORY
2011
July 25 Chaptered by Secretary of State – Chapter 117, Statutes of 2011.
July 25 Approved by the Governor.
July 11 Enrolled and presented to the Governor at 12:45 p.m.
July 1 Senate amendments concurred in. To Engrossing and Enrolling. (Ayes
62. Noes  0. Page 2158.).
June 27 In Assembly.  Concurrence in Senate amendments pending.  May be
considered on or after June  29 pursuant to Assembly Rule 77.
June 27 Read third time. Passed. Ordered to the Assembly. (Ayes 37. Noes  0.
Page 1573.).
June 22 Ordered to special consent calendar.
June 8 Read second time. Ordered to third reading.
June 7 From committee:  Do pass. (Ayes  5. Noes  0.) (June  7).
May 31 From committee chair, with author’s amendments:  Amend, and re-refer
to committee.  Read second time, amended, and re-referred to Com. on
JUD.
Apr. 25 Referred to Com. on  JUD.
Apr. 11 In Senate.  Read first time.  To Com. on RLS. for assignment.
Apr. 11 Read third time. Passed. Ordered to the Senate. (Ayes 74. Noes  0.
Page 910.)
Apr. 6 Read second time. Ordered to consent calendar.
Apr. 5 From committee: Do pass. To consent calendar. (Ayes 10. Noes  0.)
(April  5).
Mar. 21 Referred to Com. on  JUD.
Feb. 20 From printer.  May be heard in committee  March  22.
Feb. 18 Read first time.  To print.

 

13150.  The procedure provided by this chapter may be used only if
one of the following requirements is satisfied:
(a) No proceeding is being or has been conducted in this state for
administration of the decedent’s estate.
(b) The decedent’s personal representative consents in writing to
use of the procedure provided by this chapter to determine that real
property of the decedent is property passing to the petitioners.

 

13151.  Exclusive of the property described in Section 13050, if a
decedent dies leaving real property in this state and the gross value
of the decedent’s real and personal property in this state does not
exceed one hundred thousand dollars ($100,000) and 40 days have
elapsed since the death of the decedent, the successor of the
decedent to an interest in a particular item of property that is real
property, without procuring letters of administration or awaiting
the probate of the will, may file a petition in the superior court of
the county in which the estate of the decedent may be administered
requesting a court order determining that the petitioner has
succeeded to that real property. A petition under this chapter may
include an additional request that the court make an order
determining that the petitioner has succeeded to personal property
described in the petition.

 

13152.  (a) The petition shall be verified by each petitioner, shall
contain a request that the court make an order under this chapter
determining that the property described in the petition is property
passing to the petitioner, and shall state all of the following:
(1) The facts necessary to determine that the petition is filed in
the proper county.
(2) The gross value of the decedent’s real and personal property
in this state, excluding the property described in Section 13050, as
shown by the inventory and appraisal attached to the petition, does
not exceed one hundred thousand dollars ($100,000).
(3) A description of the particular item of real property in this
state which the petitioner alleges is property of the decedent
passing to the petitioner, and a description of the personal property
which the petitioner alleges is property of the decedent passing to
the petitioner if the requested order also is to include a
determination that the described personal property is property
passing to the petitioner.
(4) The facts upon which the petitioner bases the allegation that
the described property is property passing to the petitioner.
(5) Either of the following, as appropriate:
(A) A statement that no proceeding is being or has been conducted
in this state for administration of the decedent’s estate.
(B) A statement that the decedent’s personal representative has
consented in writing to use of the procedure provided by this
chapter.
(6) Whether estate proceedings for the decedent have been
commenced in any other jurisdiction and, if so, where those
proceedings are pending or were conducted.
(7) The name, age, address, and relation to the decedent of each
heir and devisee of the decedent, the names and addresses of all
persons named as executors of the will of the decedent, and, if the
petitioner is the trustee of a trust that is a devisee under the will
of the decedent, the names and addresses of all persons interested
in the trust, as determined in cases of future interests pursuant to
paragraph (1), (2), or (3) of subdivision (a) of Section 15804, so
far as known to any petitioner.
(8) The name and address of each person serving as guardian or
conservator of the estate of the decedent at the time of the decedent’
s death, so far as known to any petitioner.
(b) There shall be attached to the petition an inventory and
appraisal in the form set forth in Section 8802 of the decedent’s
real and personal property in this state, excluding the property
described in Section 13050. The appraisal shall be made by a probate
referee selected by the petitioner from those probate referees
appointed by the Controller under Section 400 to appraise property in
the county where the real property is located. The appraisal shall
be made as provided in Part 3 (commencing with Section 8800) of
Division 7. The petitioner may appraise the assets which a personal
representative could appraise under Section 8901.
(c) If the petitioner bases his or her claim to the described
property upon the will of the decedent, a copy of the will shall be
attached to the petition.
(d) If the decedent’s personal representative has consented to use
of the procedure provided by this chapter, a copy of the consent
shall be attached to the petition.

 

13153.  Notice of the hearing shall be given as provided in Section
1220 to each of the persons named in the petition pursuant to Section
13152.
13154.  (a) If the court makes the determinations required under
subdivision (b), the court shall issue an order determining (1) that
real property, to be described in the order, of the decedent is
property passing to the petitioners and the specific property
interest of each petitioner in the described property and (2) if the
petition so requests, that personal property, to be described in the
order, of the decedent is property passing to the petitioners and the
specific property interest of each petitioner in the described
property.
(b) The court may make an order under this section only if the
court makes all of the following determinations:
(1) The gross value of the decedent’s real and personal property
in this state, excluding the property described in Section 13050,
does not exceed one hundred thousand dollars ($100,000).
(2) Not less than 40 days have elapsed since the death of the
decedent.
(3) Whichever of the following is appropriate:
(A) No proceeding is being or has been conducted in this state for
administration of the decedent’s estate.
(B) The decedent’s personal representative has consented in
writing to use of the procedure provided by this chapter.
(4) The property described in the order is property of the
decedent passing to the petitioner.
(c) If the petition has attached an inventory and appraisal that
satisfies the requirements of subdivision (b) of Section 13152, the
determination required by paragraph (1) of subdivision (b) of this
section shall be made on the basis of the verified petition and the
attached inventory and appraisal, unless evidence is offered by a
person opposing the petition that the gross value of the decedent’s
real and personal property in this state, excluding the property
described in Section 13050, exceeds one hundred thousand dollars
($100,000).

 

13155.  Upon becoming final, an order under this chapter determining
that property is property passing to the petitioner is conclusive on
all persons, whether or not they are in being.

 

13156.  (a) Subject to subdivisions (b), (c), and (d), the
petitioner who receives the decedent’s property pursuant to an order
under this chapter is personally liable for the unsecured debts of
the decedent.
(b) The personal liability of any petitioner shall not exceed the
fair market value at the date of the decedent’s death of the property
received by that petitioner pursuant to an order under this chapter,
less the amount of any liens and encumbrances on the property.
(c) In any action or proceeding based upon an unsecured debt of
the decedent, the petitioner may assert any defense, cross-complaint,
or setoff which would have been available to the decedent if the
decedent had not died.
(d) Nothing in this section permits enforcement of a claim that is
barred under Part 4 (commencing with Section 9000) of Division 7.
(e) Section 366.2 of the Code of Civil Procedure applies in an
action under this section.

 

13157.  The attorney’s fees for services performed in connection
with the filing of a petition and obtaining a court order under this
chapter shall be determined by private agreement between the attorney
and the client and are not subject to approval by the court. If
there is no agreement between the attorney and the client concerning
the attorney’s fees for services performed in connection with the
filing of a petition and obtaining of a court order under this
chapter and there is a dispute concerning the reasonableness of the
attorney’s fees for those services, a petition may be filed with the
court in the same proceeding requesting that the court determine the
reasonableness of the attorney’s fees for those services. If there is
an agreement between the attorney and the client concerning the
attorney’s fees for services performed in connection with the filing
of a petition and obtaining a court order under this chapter and
there is a dispute concerning the meaning of the agreement, a
petition may be filed with the court in the same proceeding
requesting that the court determine the dispute.

 

13158.  Nothing in this chapter excuses compliance with Chapter 3
(commencing with Section 13100) by the holder of the decedent’s
personal property if an affidavit or declaration is furnished as
provided in that chapter.

Ratings and Reviews

10.0John Bernard Palley
Wealth Counsel Member
2015 Best of the Best Badge