- What is probate?
- Does every estate have to go through Probate?
- Forms for filing in a summary proceeding
- Forms for filing for the probate of an estate
- Depositing an Original Will
- What is a trust?
Probate is the court-supervised process for identifying and gathering the decedent's assets; paying taxes, debts, and expenses; and distributing the balance to beneficiaries. Probate deals with transferring the property of someone who has died (decedent) to the heirs or beneficiaries, deciding if a Will/Codicil is valid, and taking care of the financial responsibilities of the person who has died. A person dies either “testate”, meaning decedent left a Will/Codicil or “intestate”, meaning the decedent left no Will/Codicil.
Prob. Code § 8200 requires that when a person dies, the person in possession of the Will, must deliver (aka deposit) the Will to the Court within 30 days. For more information on depositing an original Will, see “Depositing an Original Will” below.
Does every estate have to go through Probate?
In estates where the total value of the assets is less than $166,250, certain affidavits or summary proceedings may allow for the transfer of property. The size of the estate, the relationship of the decedent to the beneficiary, and the character and/or title of the property generally determine the procedure applied to any given situation. The Department of Motor Vehicles has information regarding transferring a vehicle without Probate.
Forms for filing in a summary proceeding:
- Declaration for Collection of Property without Probate (SDSC Form #PR-132) (aka Small Estate Affidavit)
*After notarization, this form is to be given directly to the person/entity requiring it and not filed with the Court.
- Affidavit re Real Property of Small Value ($55,425 or less) (JC Form #DE-305)
- Petition to Determine Succession to Real Property (Estates of $166,250 or Less) (JC Form #DE-310)
- Spousal or Domestic Partner Property Petition (JC Form #DE-221)
Forms for filing for the probate of an estate:
- Petition for Probate (JC Form #DE-111) and all attachments
- Original Will and/or Codicil, if applicable. (Attached to stiff backing)
- Duties and Liabilities of Personal Representative (JC Form #DE-147)
If submitting a Will/Codicil with the Petition for Probate, you may also need the following:
Depositing an Original Will
The decedent’s original Will should be delivered to the Court of the County in which the estate of the decedent may be administered. Most commonly, this will be the County where the decedent resided at the time of death.
This Court requires that the original Will be submitted on a stiff backing. The stiff backing should contain the document’s caption (e.g. Last Will and Testament of John Doe) on the right side margin. Please refer to the Court’s fee schedule for current fees for depositing a Will. Fees can be paid by check, made payable to Clerk of the Court, or by credit using the Credit Card Payment Form (SDSC Form #ADM-253). All submissions should be accompanied by a self-addressed and stamped envelope for the return of the Deposited Will Receipt.
NOTE: Once deposited, original Wills cannot be viewed unless otherwise ordered by the Court. If you wish to view or obtain a copy of any Will, you must provide the Court with a certified copy of the decedent’s death certificate or an informational copy issued by the Office of Vital Records or the County Recorder’s Office.
In addition to depositing the original Will, the person who was in possession of the Will is required to deliver a copy of the Will to the person named as executor, if the person’s whereabouts are known, or if not, to a person named in the Will as a beneficiary, if the person’s whereabouts are known.
What is a trust?
A trust is an arrangement which takes effect during the lifetime of the creator of a trust. A trust avoids probate on any assets that are titled in the name of the trust. The terms of the trust must be revealed to the beneficiaries and heirs when the terms become irrevocable. The terms usually become irrevocable when the creator of the trust dies. A trust may also be set up by a will, which leaves property in trust for a beneficiary. These trusts are called testamentary trusts and are usually irrevocable.
Trusts are not filed or registered with the Court. You may wish to contact the County Recorder or the attorney who prepared the trust to obtain copies.