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Legal & Tax Disclosure
ATTORNEY ADVERTISING.
This article is provided for general informational purposes only and does not constitute legal, financial, or tax advice. Reading this content does not create an attorney-client or professional advisory relationship. Laws vary by jurisdiction and are subject to change. You should consult a qualified professional regarding your specific circumstances. |
I recently had a call with Emily, a woman whose mother passed away in Florida but owned a condo here in Southern California. Emily was understandably overwhelmed, not just with grief, but with the logistical nightmare of handling two separate probates – one in Florida, and now one here. She’d assumed a single probate would suffice, and was shocked to learn that wasn’t the case. This is a surprisingly common issue, and one that causes a lot of confusion and unnecessary expense for families. Emily’s situation ultimately cost her an extra $15,000 in legal fees and extended the entire process by six months.
What Happens When a Non-Resident Dies with Property in California?
When someone dies who isn’t a California resident, but owns property within the state, California law requires an additional probate proceeding called an Ancillary Administration. Think of it as a “mini-probate” that runs alongside the main probate in the state where the person lived. It’s essential to understand this isn’t a completely separate probate; it’s tied to the primary probate in the home state. The purpose is to ensure California law is followed regarding the transfer of California property. Without it, legally transferring ownership becomes incredibly difficult, if not impossible.
Is There a Limit to When Ancillary Probate is Required?
Yes, just like with full probate, there are exceptions. If the value of the California property falls below a certain threshold, you may be able to avoid ancillary probate. Currently, for deaths on or after April 1, 2025, if the gross value of the estate is under $208,850, you generally do not need to open a full probate. You can use the ‘Affidavit for Collection of Personal Property.’ Note: This limit excludes cars, boats, and trust assets. However, even if the property value is low, the legal complexities can be significant, so professional guidance is usually worthwhile.
How Does Ancillary Probate Differ from Regular Probate?
- Strong>Scope: Ancillary probate focuses solely on the California property. The primary probate handles all other assets.
- Strong>Executor/Administrator: The executor (or administrator) appointed in the main probate typically handles the ancillary probate as well.
- Strong>Creditor Claims: Creditor claims are generally handled in the primary probate, not the ancillary one.
- Strong>Court Supervision: The level of court supervision is generally less intensive than a full probate.
What About Trusts and Joint Ownership?
Fortunately, ancillary probate isn’t always necessary. If the California property was held in a properly funded trust, or owned jointly with right of survivorship, it typically bypasses probate altogether. This is why proactive estate planning is so crucial. However, even with trusts, there can be complications. If an asset was intended to be funded into a trust but was never formally transferred, a Section 850 Petition can confirm it as trust property, allowing you to bypass the full probate administration entirely.
Why is my CPA/Attorney background beneficial in these situations?
Having both a law degree and a CPA license provides a unique advantage in handling probate and ancillary probate cases. I can not only navigate the legal requirements, but also understand the tax implications of asset transfers, like the crucial step-up in basis for inherited property. This ensures clients minimize potential capital gains taxes and maximize the value of the inheritance. For over 35 years, I’ve guided families through these complex issues, providing peace of mind during a difficult time.
What if the Property is a Vacation Home?
Vacation homes are a common source of ancillary probate issues. Many people purchase property in California as a second home or investment, and may not realize the implications for their estate. The rules are the same: if they die as a non-resident, an ancillary probate will likely be required unless the property is held in trust or jointly owned. It is important to address these issues in your estate plan before your passing.
What causes California probate cases to spiral into delay, disputes, and extra cost?
California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.
To manage the estate’s value, separate property types by learning what counts as a probate asset, confirm exclusions through assets that bypass probate, and support valuation steps with inventory and appraisal to reduce disagreements about what is in the estate.
Ultimately, the difference between a routine distribution and a protracted legal battle often comes down to preparation. By anticipating the demands of the Probate Code and addressing potential friction points with beneficiaries and creditors upfront, fiduciaries can navigate the system with greater confidence and lower liability.
Verified Authority on Types of California Probate
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Spousal Property Petition: California Probate Code § 13650
The gold standard for surviving spouses. This petition allows for the transfer of community and separate property to the surviving spouse without the delays of full probate. There is no dollar limit on the value of assets transferred under this section. -
Small Estate Affidavit ($208,850 Limit): California Probate Code § 13100
For smaller estates (valued under $208,850 as of April 1, 2025), this procedure allows successors to collect money and tangible personal property by presenting a notarized affidavit to the holder (e.g., the bank), bypassing the courts entirely. -
Petition for Succession (AB 2016): California Probate Code § 13151
Designed for “house-only” estates. If the primary residence is worth less than $750,000, this court-supervised summary proceeding allows for the transfer of the property. It is faster and cheaper than full probate but requires a judge’s order to clear title. -
Ancillary Administration (Foreign Domicile): California Probate Code § 12501
If the decedent lived in another state (e.g., Nevada) but owned a vacation home in California, the California courts have jurisdiction over that real estate. “Ancillary Probate” is the process used to admit the foreign will and distribute the California property. -
Special Administration (Emergency): California Probate Code § 8540
When time is of the essence. If assets are in danger or a business needs immediate management, the court can appoint a Special Administrator. These powers are temporary and specific, intended only to hold the line until a general executor is appointed. -
The “Heggstad” Petition (Trust Cure): California Probate Code § 850
Often mistaken for probate, this is actually a petition to avoid it. If a decedent had a trust but forgot to title an asset in the trust’s name, a Section 850 petition asks the court to declare that the asset belongs to the trust, bypassing the need for a full estate administration.
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Attorney Advertising, Legal Disclosure & Authorship
ATTORNEY ADVERTISING.
This content is provided for general informational and educational purposes only and does not constitute legal, financial, or tax advice. Under the California Rules of Professional Conduct and State Bar advertising regulations, this material may be considered attorney advertising. Reading this content does not create an attorney-client relationship or any professional advisory relationship. Laws vary by jurisdiction and are subject to change, including recent 2026 developments under California’s AB 2016 and evolving federal estate and reporting requirements. You should consult a qualified attorney or advisor regarding your specific circumstances before taking action.
Responsible Attorney:
Steven F. Bliss, California Attorney (Bar No. 147856).
Local Office:
Escondido Probate Law720 N Broadway 107 Escondido, CA 92025 (760) 884-4044
Escondido Probate Law is a practice location and trade name used by Steven F. Bliss, Esq., a California-licensed attorney.
About the Author & Legal Review Process
This article was researched and drafted by the Legal Editorial Team of the Law Firm of Steven F. Bliss, Esq.,
a collective of attorneys, legal writers, and paralegals dedicated to translating complex legal concepts into clear, accurate guidance.
Legal Review:
This content was reviewed and approved by Steven F. Bliss, a California-licensed attorney (Bar No. 147856). Mr. Bliss concentrates his practice in estate planning and estate administration, advising clients on proactive planning strategies and representing fiduciaries in probate and trust administration proceedings when formal court involvement becomes necessary.
With more than 35 years of experience in California estate planning and estate administration,
Mr. Bliss focuses on structuring enforceable estate plans, guiding fiduciaries through court-supervised proceedings, resolving creditor and notice issues, and coordinating asset management to support compliant, timely distributions and reduce fiduciary risk. |
