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When a person dies, their assets are distributed in the probate process. If a person dies with a will, an executor is named to handle the distribution of the estate. If the person dies without a will, the court appoints an administrator to distribute the decedent's assets according to the state's laws of intestacy. In cases where the decedent didn't own property valued at more than a certain amount, which varies by state, the estate may go through a small estate administration process, rather than the formal probate process. The court will issue letters testamentary of letters of administration, giving the administrator authority to collect the assets of the decedent.
To dispose of the real property interests of the decedent, the administrator executes an fiduciary deed. For example, if a person who is a co-owner dies, the administrator of the estate can execute a fiduciary deed transferring their interest to the remaining owners. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and automatically will inherit the share of a deceased joint tenant by right of survivorship, without the requirement of going through probate.
Joint tenancy is a form of ownership by two or more individuals together that differs from other types of co-ownership in that the surviving joint tenant immediately becomes the owner of the whole property upon the death of the other joint tenant. State law, which varies by state, controls the creation of a joint tenancy in real property. Joint tenancy property passes outside of probate; however, it may be severed so that the property becomes part of one person's estate and passes to that person's heirs. Each joint tenant has an equal, undivided interest in the whole property, and may enter onto, take possession of the whole, occupy, and use every portion of the common property at all times and in all circumstances. All joint tenants, and their spouses, must sign deeds and contracts to transfer or sell real estate.
In the case of a life tenant who holds a life estate, when the life tenant dies, their interest may pass to the remaindermen. Title may also return to the person giving or deeding the property or to his/her surviving children or descendants upon the death of the life tenant--this is called "reversion."
The administrator may take possession as allowed by the probate rules after the estate's case is opened in court. In some cases where a person is wrongfully failing to deliver property owned by another, an petition may be made for an order to deliver the property. The local sherriff can enforce the order by taking possession.
In California, if the value of an estate does not exceed $100,000, and forty days have elapsed since the death of the decedent, an interested party may demand payment on any debts owed to the decedent through a small estate affidavit. This is a summary procedure that may be used to avoid the formal procedures associated with a regular probate proceeding.
The following are CA statutes:
(a) The personal representative is responsible for
distribution of the property in the estate in compliance with the
terms of the court order for distribution.
(b) A distributee may demand, sue for, and recover from the
personal representative or any person in possession, property to
which the distributee is entitled.
(c) A distribution of property made in compliance with the terms
of the court order for distribution is valid as to a person acting in
good faith and for a valuable consideration.