To do this, you often go to court. Dealing with the courts and the property of someone who has died is extremely complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court. But it is not always easy to tell whether you need to go to court or qualify to use a different procedure.
Here are brief definitions of terms you may encounter if you are dealing with probate, trust real estate, or inheritance property:
Beneficiary: A person who inherits when there is a Will.
Conservator: A person who has the court-appointed fiduciary responsibility for the care of another adult.
Conservatee: The person whose care is provided for under a conservatorship.
Conservatorship: A court proceeding wherein a judge appoints a responsible person (Conservator) to care for another person (Conservatee) who cannot care for him/her self or his/her finances.
Custodian of the Will: The person in possession of the Will when the person who wrote the Will dies.
Decedent: The person who died.
Executor: A person named in a Will and appointed by the Court to carry out the decedent's wishes. This person is usually named as the seller of the real property.
Heir: A person who inherits.
Intestate: When someone dies without leaving a Will. When there is no Will, the sale of the decedent’s real property often requires court confirmation.
Intestate Succession: The order of who inherits the property when the decedent does not have a Will.
Legatees, or Devisees: People who are named in a Will.
Personal Representative (Administrator or Executor): The person responsible for overseeing the distribution of the estate.
Probate: The process of deciding where, how and to whom to distribute the decedent's estate, such as the real property. Probate takes place in the county of the decedent's residence.
Probate Real Estate Sale: The transfer of legal title (ownership) of real property from the estate of the person who has died to his or her beneficiaries or to a buyer under the supervision of the Court.
Probate Referee: Before real property can be sold through probate, it must be appraised. This is done by a Probate Referee. In California, probate referees are appointed by the State Controller and assigned to a particular case by the court clerk. They are paid for this service directly by the estate, usually a percentage of the appraised value.
Real Property: The term used to refer to real estate (land and buildings) in probate and trust sales.
Testate: When someone dies leaving a Will.
Trust: When a person (Trustee) holds property at another person’s (Settlor’s) requests for the benefit of someone else (Beneficiary).
Will: A legal document that lists a person's wishes about what will happen to his/her personal and real property after death.
Do I need Probate?
You may or may not need to go to probate court to obtain title to
property belonging to a person tha has passed away. Figuring out if you
have to go to probate court depends on many issues, like the amount of
money involved, the type of property involved, and who is claiming the
And deciding if probate court is needed may also depend on the
how the property is owned (the type of title ownership) or if there is
some type of contract with beneficiaries. For example:
- Type of Title Ownership: : Sometimes all or some of a dead
person’s property passes directly to the beneficiaries because of how
the property is owned. So if the property was owned in joint tenancy, if
it was community property with the right of survivorship, when the
owner of the property dies, the property goes to the survivor. Keep in
mind that even in these cases, the survivor may have to take legal steps
to clarify his or her ownership of the transferred property.
- Type of Contract: Sometimes all or some of a dead person’s
property does not need to go through probate to pass to the
beneficiaries. This is because the property is a trust agreement with
named beneficiaries. Examples of this are life insurance that pays
benefits to someone else other than the dead person’s estate, retirement
benefits, death benefits, and trusts.
The BEST advise is to seek the counsel of a real estate attorney.