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.