In California, administering a deceased person’s estate often requires a petition to the superior court in the proper county (venue).  Let us discuss how to determine the proper county and who has standing to file a petition.  We consider the petition for probate, the petition for succession to property in a small estate, the affidavit for real property in a small estate, and the petition regarding the administration of a decedent’s living trust.

          In California, a petition to open probate of a deceased resident’s estate must be filed in the superior court of the county where a decedent was domiciled, regardless of where they died.  A person is domiciled in the county where they usually reside, i.e., their permanent residence. Thus, the place indicated on the decedent’s California death certificate as the decedent’s “usual residence” determines the proper venue (county).  If the decedent was not a California resident then the petition should be filed with the superior court in the county where the decedent’s property is situated.

          A court order issued in a California probate does not apply to real property located outside California.  If a California resident dies owning real property outside of California, then the probate laws applicable in that state or country apply.  Real estate located within the United States held in a living trust still avoids probate anywhere.

          A petition for probate may be filed by any interested person at any time after the decedent’s death, including a creditor of the decedent’s estate.  A person who is named as executor in a decedent’s will has first priority (right) to be appointed as the personal representative of the decedent’s estate.  However, the right to be appointed personal representative may be held to be waived if the person does not file a petition for probate within 30 days of learning of the decedent’s death.

          When a decedent dies with a small estate – i.e., the gross value of the decedent’s real and personal property in California is collectively under $166,250 – a small estate procedure can be utilized to transfer property.  If the gross value of all the decedent’s real property in California is under $55,425 then (six months after the death) the person, or persons, claiming to be the successor in interest to the decedent’s real property of small value can file an affidavit regarding real property in a small estate in the superior court of the county where the decedent was domiciled.   A certified copy of the court filed affidavit must then be filed with the County Recorder in the county where the decedent owned the real property (which may be a different county from the court).   

          If the decedent’s small estate includes real property in California exceeding $55,425 in total value then a petition to determine succession to real and personal property can be filed in the county where the decedent was domiciled at time of death.  Such a petition must be signed and filed by the person(s) claiming to succeed to the decedent’s interest(s) in real and personal property in California.

          Unlike probate, a living trust is usually privately administered without court supervision.  Sometimes, however, a court petition is still needed, such as, but not limited to the following situations:  when a trustee needs to be appointed, the trustee needs instructions or the trustee needs to ascertain what assets belong to the trust.  A court petition concerning the administration of a trust can be filed either by the trustee or by a trust beneficiary.  The proper county in which to file the trust petition is the county where the trustee resides or does business. 

          The foregoing discussion regarding proper venue and standing is not legal advice.  Consult an attorney if confronting any of the foregoing issues.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”