If a non-resident (non-domiciliary) decedent dies owning real property in California, the administration of the deceased non-resident’s real property in California is subject to California law. How the non-resident’s real property in California is owned (titled) in major part dictates whether the non-resident’s real property in California is subject to probate in California.
If the California situated real property was titled as joint tenancy with right of survivorship, then a simple affidavit of death of joint tenant, with an attached certified death certificate, is recorded with the county recorder’s office where the real property lies, and accompanying county assessor’s documents filed at the same time. This removes the deceased joint tenant’s name from title, with the surviving joint tenant(s) owning the decedent’s interest, and tells the assessor that the owner is deceased and identifies the new owner.
If the real property was titled as a trust asset in the decedent’s name as trustee, then the successor trustee can retitle the interest into the successor trustee’s name by recording an Affidavit of Successor Trustee, attaching a certified death certificate, and filing Assessor documents. The real property becomes part of the decedent’s trust administration and avoids probate.
If the real property is titled in the decedent’s name individually then the analysis is more involved. If the total value of the nonresident’s real property in California is appraised (by a probate referee) at more than the dollar (value) threshold at which a probate is required, then a so-called “ancillary probate” is required. Presently, decedents dying on or after April 1, 2022, with an estate appraised with a gross value equal to or greater than $184,500, are subject to probate if the assets pass to someone other than the decedent’s surviving spouse or registered domestic partner.
Assets passing to a decedent’s surviving spouse or surviving registered domestic partner are not subject to probate, regardless of whether the decedent was a resident of California. Instead, a so-called Spousal Property Petition is used to transfer title, with a single court hearing, without probate to the surviving spouse.
If a nonresident decedent’s estate is involved in probate proceedings in the decedent’s domiciliary (home) state, then the California personal representative in the ancillary probate often needs to cooperate with the personal representative in the decedent’s domiciliary (home) state. Usually, they are the same person. Ancillary probate in California will often results in the net estate being distributed to the personal representative of the decedent’s domiciliary state. It then becomes part of the decedent’s domiciliary (home) state probate.
If the nonresident owned real property in California that (collectively) appraised by a California Probate Referee at under the probate threshold then an alternative approach may be available. Typically, the alternative is for the person claiming ownership (under a decedent’s will or under California’s laws of intestate succession) to file a so-called, “Petition to Determine Succession to Real Property”. No consent is required from the decedent’s domiciliary (home) state personal representative; only notice to the domiciliary personal representative is required. If successful, the petition results in an order transferring title to the petitioner without any administration.
If the appraised value of the real property is small, i.e., is less than $61,500 (for Decedent’s dying after April 1, 2022), then an Affidavit with an attached certified death certificate is used. The affidavit, and attachments, is filed with the superior court in the county where the real property lies and a certified copy of the affidavit is recorded with the county’s recorder office, along with filing assessor forms.
Nonresident decedents, like resident decedents, do well to have their affairs in order both to avoid probate and to distribute assets as intended when it comes to their California situated properties. Typically a trust is the preferred estate planning approach. A trust does not have to be established or administered in California to own assets in California or in other sister states.
The foregoing discussion is not legal advice. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.
“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.”