The Will is the process of analyzing and administering the transfer of property assets that were previously owned by a deceased person. When a property owner passes away, their assets are typically reviewed by a probate court. This court renders the final decision on how the assets should be divided and distributed to beneficiaries. A probate proceeding will usually begin by looking at whether or not the deceased person has provided a legally binding will. Probate property is an asset or assets left behind by a deceased individual and that must go through probate court.
This includes assets that are distributed through a will or that have been left by someone who has died without a will. Although real estate is usually referred to when discussing buying and selling probate assets, you can sell any asset that is part of the estate, such as jewelry, stocks, cars, and collectibles. Since an executor's primary responsibility is to preserve estate assets so they can be distributed to heirs, the sale of probate assets usually only occurs when necessary to pay creditors, although other situations, such as eminent domain, may require a sale. A house is sold through probate when it is owned by someone who has passed away. They did not leave a will to dictate who should have the property or it was intended to be sold and the proceeds were divided among the heirs.
When someone dies, they leave an estate that contains all the assets they owned during their lifetime, such as cash, investments, and real estate. The legal process through which these assets are sold or divided among heirs is called probate. If you are looking to buy a home, you may come across probate sales. These can be unique opportunities to purchase a property. A deceased person leaves many types of assets upon death, but not all of them are subject to California probate laws.
Certain types of non-testamentary property may pass to another person due to the way they were owned by the deceased or because they are designated to be transferred by operation of law. An estate planning and administration lawyer can tell you more about the differences that apply to your particular situation, but an overview of probate and non-estate assets can help you understand how California law works. Any real or personal property that was individually owned by the deceased is considered a probate asset. This can include tangible items such as a house, vacation home, car, boat, jewelry, art, collections, furniture, household items, and many other belongings. In addition, there are also likely to be intangible assets including checking and savings accounts, stocks, shares in a business, and similar items. Property that is not individually owned by the deceased may be considered a non-testamentary asset by law.
Real estate is a common non-testamentary asset because it can be held in conjunction with the right of survivorship which means that the interests of the deceased person are transferred to the surviving owners when one dies completely outside of the probate process. Other non-testamentary assets include bank accounts or life insurance policies that include a payee designation. This tactic is often used in estate planning where a person includes a “pay on death” clause or beneficiary designation in order to keep the asset out of the estate process. Keep in mind that any property owned by a living trust is also considered a non-testamentary asset. With this type of estate planning structure, an individual transfers ownership and securitizes the asset in the name of the trust.
The individual can enjoy the benefits of the asset but technically does not own legal title to the trust asset either during their lifetime or after death. Consult with an Estate and Probate Administration Attorney This overview of the types of assets in a deceased person's estate may be useful but it is not a substitute for advice from an experienced probate attorney. A lawyer can review your particular circumstances and provide more information about your options regarding probate and non-probate assets. Stark has extensive experience assisting clients with estate planning and various probate matters so contact our office for more information. Our legal team serves clients in Santa Rosa CA and throughout Sonoma County. To complete the probate process, the personal representative or probate attorney will need to sell the property.
It should be noted that Probate Code §1202 allows any interested party for good cause appearing on record to summon the personal representative to appear in court and explain why the estate cannot be distributed and closed yet. The probate attorney will be responsible for filling out an inventory and appraisal form so you will need to know what assets are part of the estate. The court will approve distributions once the probate attorney prepares and files a Final Petition with details about how much was sold from the house, how much was paid to creditors, and how much is left for distribution among heirs. Probate Code §8904 provides that if there are any unique artistic unusual or special items of tangible personal property then at the choice of personal representative they may opt for an independent appraisal for those items. Knowing what...
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