Court Order Determining Succession

California Probate Code (CPC) 13150 allows for a Court Order Determination to transfer Real Property, or Real and Personal Property of the decedent within California not exceeding $150,000 in value to be transferred without a formal Probate to an heir or beneficiary, if the following requirements are met:

A-The property being transferred must be either real property alone or a combination of real property and personal property, it cannot be only personal property.

B-At least 40 days have passed since the decedent’s death.

C-The gross value of the property (determined at the date of death) cannot exceed $150,000.

D-Any heir or beneficiary, whether a Will exists or not, can petition the Court for this Order.

E-All heirs, beneficiaries, or interested parties of the decedent’s property must join with you in your request to the Court by signing the Petition.

F-If a probate proceeding is pending for the decedent’s estate, the personal representative must consent to the court order procedure in writing. Additionally, at least 6 months needs to pass from the decedent’s date of death, and all of the decedent’s unsecured debts must be paid.

 

Multiple California forms are necessary for attaining a Court Order Determining Succession to Property, you will need the following:

1-California form DE-310, Petition to Determine Succession to Real Property. This form will need to be completed and signed by all interested beneficiaries/heirs of the property in question. There is a filing fee associated with this filing ($395.00 as of June, 2012).

2-California form DE-315, Order Determining Succession to Real Property. This form has much of the same information contained in the DE-310 Petition above, so it is relatively easy to complete.

3-California form DE-120, Notice of Hearing. This form is used to prove that notice was given to the interested parties listed on form DE-310. This is a multi-step procedure that consists of the following:

i-File the completed form DE-310 (Petition), and form DE-120 (Notice of Hearing), along with a copy of each, with the Superior Court where decedent resided. When preparing the Notice of Hearing, only fill out the first page of the form, the second page will be filled out later. Additionally, leave the “Hearing Information” box unfilled as the Court Clerk has not given you that information yet. Once filed, the Court Clerk will assign a hearing date for your petition, along with the Judge, Court Room, Department, and time of hearing. The clerk will then give you copies of the Petition and Notice of Hearing, each of which should have the hearing date information either stamped or filled out on them. Please note that this is the procedure in most counties in California, but some counties vary. Contact your local probate court for more information.

ii-Insert the hearing date information into form DE-120 (Notice of Hearing) if it has not already been done by the Court Clerk. Now you can complete the second page of the Notice of Hearing, including names and addresses of all interested/served parties. Then have a non-interested party, who is over the age of 18, sign and serve the notice to interested parties. Attorney’s usually use a paralegal or secretary.

iii-Mail a copy of the DE-120 Notice along with a copy of the Petition (DE-310) to all interested parties. Make sure the copy of the Petition (DE-310) and the Notice of Hearing (DE-120) both contain the hearing date information. All parties must be served with Notice at least 15 days before the hearing date.

iv-Re-File form DE-120 (Notice of Hearing) with the court after all interested parties have been sent their notification and petition. Remember that you are now re-filing the “completed” DE-120 form. The first time it was filed, only page one was completed. A bit odd, but this is the process many counties throughout California follow. Contact your local county to find out their exact procedure.

v-As you now have the hearing date information, you can now insert that information into form DE-315 (the Order). Once completed, file the Order along with a copy with the court. Make sure to file this at least 4 days prior to the hearing date. Do it way in advance if you can – If you make the court clerk’s life easier, they are sure to make your life easier as well.

 

If the Court Order is granted, you will then need to file the Judge-signed Order with the Clerk’s Office at the court. Ask for a certified copy from the clerk. You will then need to take the certified copy of the order and file it with the County Recover of the county where the real property is located. This puts the world on notice that the property has transferred from the decedent to the heir/beneficiary.

Note – Because this is not a full probate proceeding, those receiving property under the Court Order procedure will be responsible for the decedent’s debts, up to the fair market value of the property as calculated at the date of death. Thus it is advisable to speak with an attorney before filing for a Court Order Determining Succession to Property.