This is a document by which a person may set out his or her directions concerning health care, end-of-life decisions, and related concerns. This form is comprised of three main components:
The court will consider persons for appointment as administrator according to an order of priority that starts with the surviving spouse or domestic partner and is followed by the decedent’s children, then grandchildren, followed by other family members. (CPC §8441; 8461)
A person appointed by the probate court to administer the estate of a decedent who dies intestate (without a will) or whose named executor (in a will) is unable or unwilling to act. The administrator is to work with the court in the acts necessary to transfer or distribute the real and personal property in the decedent’s probate estate to those who succeed the decedent in ownership. (CPC §8460-8469)
The court will consider persons for appointment as administrator according to an order of priority that starts with the surviving spouse or domestic partner and is followed by the decedent’s children, then grandchildren, followed by other family members. (CPC §8461)
An individual or organization to which a gift of property, whether real or personal, is made. Such an individual or organization may receive the gift of property under a legal instrument such as a will, trust, or a non-probate transfer such as a life insurance policy. A beneficiary is distinguished according to the legal instrument or process by which the gift of property is made. For example:
Any property acquired by either spouse during marriage, except for property acquired by gift or inheritance. As for community property, each spouse owns an undivided one-half (1/2) interest in the property.
For example, if the wife’s friend gifts the wife $10,000, that would be separate property. Similarly, should either spouse’s parent die and he or she inherited money, such inheritance would be considered separate property. (CPC §28)
An individual or organization to which a gift of property is made under a legal instrument such as a will, trust, or a non-probate transfer such as a life insurance policy, but only in the event one or more prior conditions occur such as the death of a primary beneficiary. A contingent beneficiary has no actual interest in the assets conveyed by the legal instrument unless the prior conditions are actually satisfied.
For example, a trustor names her child as the beneficiary of her trust estate. She also provides a non-profit organization as contingent beneficiary on the condition her child predeceases her. During the Trustor’s life, she alone holds all the interest in the trust assets. As a contingent beneficiary, upon the death of the trustor, the non-profit organization has no actual interest in the trust assets nor can they enforce any perceived rights unless her child has in fact predeceased her.
A formal demand for payment by a person for debt owed by the decedent, typically used in a probate setting. (CPC §9000-9004)
An individual or organization who is designated in a will to receive a devise.
For example, a will may direct that any property not already placed in a trust or not disposed of by a non-probate transfer such as a life insurance policy, pass to the individual’s trust to become part of the individual’s trust estate. In such a case the trust or trustee is the devisee. (CPC §6300-6303, 21117)
Descendants are generally considered to be the children, grandchildren, or great grandchildren of the decedent. The determining characteristic of a descendant is the parent and child relationship. Children who are adopted by the decedent, children of the decedent born outside of marriage, and any foster children of the decedent may also be considered descendants. (CPC §6205, 6450-6455, 21115)
The person named in a will to carry out the decedent’s wishes in regard to the distribution and administration of the decedent’s estate. In the event a formal probate proceeding is necessary, an executor must file the decedent’s will with the court within 40 days of the decedent’s death and request from the court Letters Testamentary in order to begin, and complete, the administration of the decedent’s estate. (CPC §8420-8425)
An individual who would inherit property from a decedent who died intestate (without a will). In the event an individual dies intestate, heirs are determined by reference to intestate succession which considers any surviving family members of the decedent, such as a surviving spouse and/or children. If there is no surviving spouse or children, intestate succession will extend to descendants, such as grandchildren, or other relatives, such as parents or siblings. (CPC §44, 248, 6400-6414).
A list of the decedent’s real and personal property typically used in a formal probate proceeding. Any cash assets, such as bank accounts, are valued by the executor or administrator and any non-cash assets, such as real property or vehicles, must be appraised by a Probate Referee who will be appointed by the court. (CPC §8800-8804)
Should circumstances require the immediate appointment of a personal representative for the preservation of the probate estate, letters establishing the authority of a special administrator to act as personal representative are issued before the petition for probate is normally heard. Circumstances that may require such an appointment are when estate assets are at risk, if the probate proceedings themselves are, or will be, disputed, or the decedent had a business that needs to continue uninterrupted. (CPC §8540-8547)
Letters of Administration are issued in the case of a decedent who died intestate (without a will), letters of administration establish the authority of the administrator to act as personal representative in the administration of the probate estate in accord with the laws of intestacy (CPC §8460-8469)
Letters issued in the case of a decedent who left a will but failed to name an executor, or a named executor is unwilling or unable to act; letters of administration with the will annexed establish the authority of the administrator to act as personal representative in the administration of the probate estate in accord with the terms of the will (CPC §8440-8442)
Letters are the court issued document that establishes the authority of the personal representative to act on behalf of the decedent in the administration of the decedent’s probate estate. There are different types of letters that correspond to the different manner in which a personal representative is appointed by the court, such as: Letters Testamentary; Letters of Administration with the Will Annexed; Letters of Administration; or Letters of Special Administration. (CPC §8400-8405)
When a Medi-Cal recipient dies, the state may make an “estate recovery claim” for repayment of certain health care services which the decedent received and were paid for by Medi-Cal. Since January 1, 2017, certain assets are exempt from such a claim, including real property held in a trust (such as a revocable living trust), and property held in a joint tenancy, survivorship and/or life estate arrangement.
A legal instrument or designation made on financial plans and accounts, by which an individual may transfer real or personal property upon their death to a beneficiary without requiring a probate court proceeding. The most common legal instrument to effect such a transfer is a living trust. The most common designations on financial plans or accounts are those requested for insurance policies, pension plans, and individual retirement accounts. (CPC §5000-5003)
A surviving spouse who is not mentioned in a testator’s will because the marriage occurred after the will was executed but before the death of the testator. If the decedent did not provide for the surviving spouse in another way or did not intentionally and clearly exclude the surviving spouse, the surviving spouse may be entitled to one-half of both the decedent’s community property and quasi-community property plus up to one-half of the decedent’s separate property. (CPC §21610-21612)
A child or descendent who was born before a testator executed a will and yet was left out of the will by the testator. If upon the death of the testator, he or she did not provide for the child or descendent in another way or did not intentionally and clearly exclude the child or descendent, the child or descendent may still be entitled to receive the same share of the estate as he or she would have received had the decedent died intestate (without a will). (CPC §21620-21623)
A Power of Attorney is a document whereby an individual (the “principal”) can grant to another person (the “holder,” “attorney-in-fact,” or simply “agent”) the power to conduct functions, typically of a financial nature, on his or her behalf. A power of attorney is considered “durable” if the authority to conduct functions remains exercisable even if the principal should become incapacitated. In California the most commonly used general power of attorney is a Uniform Statutory Form Power of Attorney. (CPC §4124; 4401-4409)
A Power of Attorney for Health Care allows you to designate a person (and any potential “backups”) as your agent, to make health care decisions on your behalf should you be incapable, such as in a coma. It is normally one of three parts that comprise a California Advance Health Care Directive. (CPC §4670-4678; 4680-4691)
Probate Fees are the attorney and executor fees allowed by statute in a court-supervised administration (i.e., probate) of one’s estate. While there may be cause to request extraordinary fees from the court, the current fee structure is as follows:
For example, Probate Fees payable to the executor for the administration of an estate with a hypothetical value of $900,000:
A publicly appointed person charged with the responsibility to serve as personal representative for the estate of a decedent having no individual available in the order of priority; and only in the case the total value of the decedent’s estate exceeds $150,000. (CPC §7620-7624; 8461)
The generic term for the person who is authorized to act on behalf of the decedent’s estate. If a decedent died testate and the will named an executor, the personal representative is the executor. If a decedent died intestate (without a will) or left a will without naming an executor, the personal representative is the administrator, that is, the person appointed by the court to administer the decedent’s estate. (CPC §8400-8405)
The official appointed by the probate court to appraise certain real and personal property of the decedent (such as a house, vehicles, or art pieces) other personal property (such as cash assets held in bank accounts) are the responsibility of the personal representative to appraise. If the decedent had a unique, artistic, unusual, or special item of tangible personal property, the personal representative may request an independent expert for the appraisal instead of the Probate Referee. (CPC §8900-8909)
An employee of the probate court whose responsibility it is to examine files and documents in pending probate matters set for hearing. The probate examiner provides technical, procedural, and legal review of all procedural submissions to ensure proper notice has been given and all required documents have been completed. Probate examiner notes are posted online before the hearing date for the parties to review and correct any deficiencies or defects prior to the hearing.
All of the decedent’s real and personal property that must pass by way of a formal probate proceeding in order to be distributed to those who succeed the decedent in ownership. In California, if the combined value of the decedent’s real and personal property exceeds $166,250, a formal probate proceeding will be necessary.
However, if any property passes by way of a non-probate transfer it is excluded from the calculation of the $166,250 total. Examples of non-probate transfers include property held by a living trust, bank accounts with designated pay-on-death beneficiaries, retirement accounts and insurance policies with designated beneficiaries, real property held in joint tenancy, or community property that passes outright to a surviving spouse.
A formal judicial proceeding by which the real and personal property of a decedent is distributed to the successors in ownership, whether by way of the decedent’s will or in accordance with the laws of intestacy. A formal probate proceeding involves the court’s determination of a purported will’s validity, appointment of personal representative, the inventory and appraisal of the decedent’s assets by a Probate Referee, satisfaction of any creditor claims, and final distribution of the remaining assets to the person(s) or entity(ies) entitled to them. (CPC §7000-7001)
A child or descendent who is not mentioned in a testator’s will because such child was born or adopted after the will was executed, but before the death of the testator. In such a case, the court may determine the heir was overlooked and is therefore entitled to receive the same share of the estate as such child would have received had the decedent died intestate (without a will). (CPC §21620-21623)
A power of attorney that “springs” into effect once a specified event or contingency has occurred, in accordance with the terms of the power of attorney document. For example, an individual could create a power of attorney that does not become effective until they take their next vacation or business trip to a foreign country. (CPC §4030)
A person appointed by the probate court to administer the estate of a person whose estate requires immediate administration regardless if the decedent died with or without a will. Such appointment may be for a specified amount of time, to perform particular acts, or according to any other terms specified by the order of the court. (CPC §8540-8547)
Depending upon the situation, the court will ordinarily give preference to persons entitled to appointment as personal representative (CPC §8541; 8461) or may appoint a public administrator (CPC §7620-7624).
A trust is a relationship, typically spelled-out in a written document, called a “trust agreement” or “declaration of trust,” whereby the creator of the trust (the “trustor”) transfer their property into the managerial hands of a “trustee” (who is typically the trustor during their lifetime) for the benefit of designated “beneficiaries” (typically the trustor during their lifetime, followed by a spouse and/or descendants upon the death of the trustor). (CPC §15200-15212)
An individual who has died leaving a will.