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Formal vs. Summary Probate: What’s the Difference?

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Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: May 24, 2019

There are a variety of ways an estate may go through probate, depending largely on the size of the estate and how it is set up. If you want to purchase or sell real estate in probate, much of the process depends on whether the estate goes through a simplified/summary probate procedure or a formal […]

There are a variety of ways an estate may go through probate, depending largely on the size of the estate and how it is set up. If you want to purchase or sell real estate in probate, much of the process depends on whether the estate goes through a simplified/summary probate procedure or a formal probate case.

What Is Simplified/Summary Probate?

California allows for a simplified probate process under certain conditions. If the value of an estate is below a certain amount, beneficiaries can bypass the probate process entirely.

Beneficiaries can avoid probate if the value of the estate is $150,000 or less, per California Probate Code 13050. Beneficiaries must go through a 40-day waiting period before accessing any liquid assets through this process. If the value of real property in the estate is valued at $50,000 or less, then that property can be transferred to the beneficiaries without a court date or a formal probate case being opened. The beneficiaries must wait six months before transferring real property through this method. In both situations, the beneficiaries simply sign an affidavit under oath to facilitate the transfer.

For estates with real property worth more than $50,000 but not more than $150,000, there is a special summary probate procedure to transfer the property to the beneficiaries without a formal probate case being opened. Unlike the six month requirement above, the beneficiaries can file the paperwork with the court after 40 days. This procedure does involve a court date, but it still makes for a much easier and cost-effective alternative to a formal probate case.

These simplified probate processes accommodate those inheriting small estates. An heir or beneficiary can handle the matter in the decedent’s county of residence or the county in which the property is located. The value of the estate may be no more than $150,000.

An Introduction to Formal Probate

The formal probate process can take much more time in California. The client must file the Will (if there is a Will) with the court and file a Petition for Probate. Formal notices are served to family members, beneficiaries, and creditors. The client, if appointed by the court to represent the estate, is responsible for gathering the decedent’s assets, handling the estate’s financial responsibilities, and appraising property. Throughout the process, the client can sell property and must maintain the estate. However, in some situations, they do need court approval to sell real estate. The probate process is likely to take at least nine months to a year, though the client should get authority to sell real estate much sooner.

Purchasing or Selling Real Estate in Probate

If an estate goes through simplified/summary probate, the process of buying real estate is considerably easier. While the waiting period can delay the sale or purchase of property, the 40-day or six-month waiting period is often much shorter or comparable to the process of selling

a home in formal probate. At the very least, it is generally much more cost effective.

Real estate in certain, formal probate cases must go through a strict process before being sold. The client must accept an initial offer on the property. If the initial offer is accepted, then there should be a 10% deposit.  At that point, a court date needs to be arranged. The original proposed buyer can be outbid at any point during this process, which could spark a bidding war between the original buyer and other potential buyers. If no other buyers express interest and the court approves the initial offer, the home sale is finalized. Purchasing a home in formal probate can be somewhat complicated if unfamiliar with the process and if you do not have proper legal guidance. Risks can include:

    • Offer refusal.
    • Being outbid.
    • Property going to auction.
    • Beneficiaries disputing the estate and delaying the process.
    • Court refusal of the offer.

Selling property in probate can be profitable, provided you have the patience to wait out the probate process. If you need help with a probate process for a client, or have any general questions, contact Werner Law Firm for a free consultation at 1-866-265-4467.

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