Financial institutions offer “Payable on Death” or “POD” accounts. This is a designation that requires the financial institution to pay over the proceeds of the account to the identified individual(s) who is to receive it, as directed by the deceased person.
from appointment of the personal representative), the personal representative has paid the claims and final tax returns for the deceased person have been prepared and filed, the personal representative can begin the process of closing the estate and distributing the assets.
Life insurance also does not require probate, assuming that there is a named beneficiary for the proceeds. If there is no named beneficiary, there may be a required probate. This is also true for retirement benefits; typically, if married, the spouse is named as the primary beneficiary. Probate should generally not be required in this event.
NAWRB: Can I leave my Property to Anyone?
There is law in California that if the personal property assets of a deceased person, exclusive of those in trust or which pass by operation of law (e.g. joint tenancy property, POD accounts, life insurance, retirement benefits) do not exceed $150,000.00 in value, a beneficiary may execute an affidavit requiring a financial institution to deliver those assets to the beneficiary, no probate required in that circumstance. This procedure does not apply to real property; for real property the limit is $20,000.00 in value. NAWRB: Someone has died; the relatives have gone over all of the assets and it is determined that there has be a probate as to some of those assets. What then? TMH: The process is started by filing a petition for probate with the Superior Court for the County in which the deceased person had their residence at the time of death (if they lived out of State but there is property in California, the petition is one for an ancillary probate). Notice is given to all those concerned as well as being published in the newspaper. Assuming no one has filed objections, all the paperwork has been properly submitted, published and served, the court will order the commencement of a probate with a person appointed as executor (testate) or administrator (intestate). The duty of that person (also referred to as the personal representative of the estate) is to ascertain who the creditors of the deceased person are (by giving Notice to Creditors) and to inventory the assets of the deceased person. The personal representative can value cash assets for purposes of the inventory and appraisal but any other type of asset (e.g. real property, securities, art collection) requires valuation by a probate referee. Probate referees are assigned to value an estate by the court. Once the inventory and appraisal has been filed, the time for filing creditor’s claims has run (typically four months
TMH: In California, if property of a decedent is left to a “Care Custodian”, it is presumed that the gift was a product of fraud or undue influence and is otherwise invalid (California Probate Code §21380). “Care Custodian” includes, among others, some who takes care of a dependent adult (someone over 65 years of age who cannot provide for themselves or has mental deficits) but only if the instrument making the transfer was executed during the period in which the Care Custodian provided services to the deceased, or was executed within 90 days before or after that period. There are exceptions, for example, if the instrument making the gift is reviewed by an independent attorney, who issues a certificate of independent review, the presumption does not apply to the transfer. Another exception is when the beneficiary is related by blood to the deceased. There are other particulars pertaining to this presumption, which could justify a separate article in itself, however, in there interests of brevity, I will not go into them here. Theodore M. Hankin is licensed by the State of California as both an attorney and as a CPA. Mr. Hankin is a partner in Messina & Hankin, LLP.