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Non-Probate Transfers

Guidance from an Experienced Probate Lawyer in Oakland

There are several ways to transfer property without probate. Before we open a probate I will review the alternative options with you and your family.

Property not Assigned to an Existing Trust

It is very common for families to create a trust, put their home in the trust, and then when they refinance, or buy another home, they forget to put it back in the trust.

As long as there is evidence that this was unintentional, the best practice is a Heggstad Petition. This petition asks the court to transfer the title to property back to the trust without a formal probate. It can save clients $30,000 in probate fees. The petition can also be used for financial accounts that were not titled in the name of the trust (as long as there is some evidence that they were intended to be in the trust.)

Cost: I do these often and tell clients to plan on about ten hours of attorney time plus the filing fee of ~$450.00.

Transferring Title to a Spouse not listed on Title

This situation usually comes up when one spouse is on title to an asset and the other person was not listed, most commonly for financing purposes. When the spouse on title passes away, the other spouse needs to have their name added to the title in order to sell or take a loan out on the property.

In this situation you do not have to open a probate to transfer title, instead the surviving spouse can petition the court to confirm the spouses community property share to the surviving spouse. The order will tell the county recorder to re-title the asset in the surviving spouse's name.

Cost: Plan on about ten hours of attorney time plus the filing fee of ~$450.00.

Summary Administration – No will or will and assets under $150,000

If there is no real property in an estate and the value of the remaining assets is less than $150,000, there is a simplified form of probate called summary administration. You can also take title to most assets using an affidavit. You can get more detailed instructions on how to use this process here. There are forms and step-by step instructions.

Cost: An attorney is not generally needed for this type of affidavit.

summerall law
Summerall Law, P.C. - Oakland Estate Planning Attorney
Located at 3873 Piedmont Avenue, Suite 8,
Oakland, CA 94611
Phone: (415) 944-9406
Local Phone: (415) 944-9406

The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information is not intended to create, and receipt or viewing does not constitute, an attorney-client relationship.

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