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What Is Summary Probate?

Nov 8, 2024

Understanding Probate in California: Summary Probate, Ancillary Probate, and Alternatives

When it comes to settling an estate after a person’s death, each state has specific probate laws that govern how the process unfolds. In some states, you may hear terms like “summary probate” or “ancillary probate.” However, in California, these processes do not apply. Instead, California has its own probate process, with a few specific alternatives for certain situations, such as spousal property petitions and small estate affidavits. In this post, we’ll explore what probate looks like in California and the limited alternatives available.

Probate in California: No Summary or Ancillary Proceedings

In many states, “summary probate” refers to a simplified probate process used when an estate’s value is below a certain threshold. Ancillary probate, on the other hand, involves opening an additional probate case in another state if the deceased owned property there.
However, California does not recognize either of these specific proceedings. Instead, California has a single, standard probate process, and all estates, regardless of their size or the type of assets, are generally handled through this standard probate. Let’s break down some key differences:
  1. No Summary Probate: In states that offer summary probate, estates that meet certain conditions—such as having a relatively low asset value—can bypass the full probate process. California, however, does not offer a “summary probate” per se. For larger estates, California follows the standard probate process, which involves petitioning the court, validating the will, and distributing assets as directed by the court.
  2. No Ancillary Probate in California: Ancillary probate is a type of probate proceeding used in states where the deceased owned property but was not a resident. For example, if a California resident owned real estate in Kansas, an ancillary probate case would be opened in Kansas to handle that specific asset. California does not have an ancillary probate process, so estates with out-of-state assets must open probate proceedings in those other states separately.

Alternatives to Probate in California: Spousal Property Petition and Small Estate Affidavit

While California does not offer summary or ancillary probate, it does provide two alternative processes for specific situations: spousal property petitions and small estate affidavits. These processes can simplify estate administration for surviving spouses and small estates, respectively.
  1. Spousal Property Petition: In cases where a decedent’s property is to be transferred to a surviving spouse, California allows the spouse to file a spousal property petition. This is a simplified process that allows the surviving spouse to request the court to transfer ownership of assets without going through full probate.
    • How It Works: The surviving spouse files a spousal property petition, along with evidence showing that the decedent’s property should legally belong to them under California’s community property laws.
    • Requirements: The property must qualify as community property or separate property that was intended to pass to the surviving spouse.
    • Court Approval: The court reviews the petition and, if approved, issues an order transferring the property to the surviving spouse. This process is typically faster than standard probate and is less costly for the surviving spouse.

The spousal property petition is particularly useful in California, where community property laws govern many aspects of property ownership between married individuals. This process can save time and simplify the transfer of property rights for surviving spouses.

  1. Affidavit for Small Estates: California allows certain small estates to bypass formal probate if their total value is below a certain threshold, currently set at $184,500. Instead of going through the full probate process, a person with a small estate can use a small estate affidavit to transfer assets directly to the beneficiaries.
    • How It Works: The executor or beneficiary completes an affidavit for small estates, which must include details about the assets and the heir’s entitlement.
    • Requirements: The estate must fall below the specified value limit, and the assets must meet certain eligibility requirements.
    • Avoiding Probate: By using this affidavit, heirs and beneficiaries can avoid the full probate process, saving time and reducing legal costs.

The small estate affidavit process is often used for estates without significant assets, such as bank accounts, personal property, and other minor assets. However, if the estate includes real estate valued above the threshold, this option may not be available.

When Probate Is Necessary: Larger Estates and Out-of-State Property

For estates that don’t meet the requirements for a spousal property petition or small estate affidavit, California’s standard probate process is required. Here are a few scenarios where probate is typically unavoidable:
  1. Larger Estates: For estates exceeding the $184,500 threshold, California requires probate. This process involves filing a petition, notifying beneficiaries, verifying the will (if there is one), and following a court-approved plan to distribute assets.
  2. Estates Without a Will: When a decedent dies without a will, their estate still requires probate to determine the rightful heirs according to California’s intestate succession laws. This process ensures that assets are distributed according to the state’s legal guidelines, which prioritize close family members as primary heirs.
  3. Out-of-State Property: When the estate includes property located outside of California, the executor may need to open a separate probate case in each state where the decedent owned property. This requirement arises because each state has jurisdiction over real property within its borders, so out-of-state property cannot be distributed through California’s probate court.

Key Differences Between Probate and These Alternative Processes

While probate can be a lengthy and costly process, the spousal property petition and small estate affidavit offer simplified alternatives for specific cases. Here are some key differences:
  • Time and Cost: Probate often requires months or even years to complete, along with significant legal fees. In contrast, a spousal property petition or small estate affidavit can streamline the process, often reducing costs and time.
  • Court Involvement: Full probate requires multiple court appearances and formal court oversight, whereas a spousal property petition or small estate affidavit can sometimes bypass these formalities.
  • Asset Requirements: Not all estates qualify for the alternatives. The spousal property petition only applies to property that can be transferred to a surviving spouse, while the small estate affidavit is limited to estates valued under the threshold.
Understanding California’s probate process and the available alternatives can help families make informed decisions during estate administration. While California does not offer summary or ancillary probate, the spousal property petition and small estate affidavit provide helpful shortcuts for eligible estates. For those with larger or more complex estates, following the standard probate process remains necessary to ensure assets are distributed correctly.
If you are facing the probate process or are unsure about eligibility for a spousal property petition or small estate affidavit, consider consulting with an estate attorney to navigate the legal requirements and ensure that your loved one’s assets are properly managed.