Set Aside the Estate

California Probate Code section (CPC)6600-6615 allows for a simplified procedure, called a “Set-Aside Petition”, instead of a full probate if the following requirements are met:

A-The net value of decedent’s estate does not exceed $20,000 at the date of death. The calculation includes all real and personal property, but excludes all non-probate property, liens, and other encumbrances (such as a mortgage on a house), that would reduce the net value of the estate. Additionally, there is a homestead interest deduction under CPC 6520 that might be applicable.

B-Only the surviving spouse (or domestic partner) or the decedent’s minor children can request that the estate be “set aside” under this procedure.

C-The Petition can only be filed by the executor in the will, if there is one, the surviving spouse, a guardian of a minor child, the personal representative, or a child of the decedent who has since become of legal age to do so.

The following is a sample Petition to Set Aside the Estate, which covers the required information needed per CPC 6604:

Petition to Set Aside an Estate

[Title of court]

The Estate of [decedent's name) No._ _ _ _ _ _ (if a No. exists)

PETITION FOR ORDER TO SET ASIDE ESTATE NOT EXCEEDING $20,000

_ _[Name of Petitioner]_ _alleges:

1. _ _[Name of decedent] __ died on_ _[date]_ _, and at the time of _ _[his/her]_ death was domiciled in ___________ County, California, and left an estate, the net value of which, above all liens and encumbrances at the date of death and the value of any homestead interest set aside from the decedent’s estate under Probate Code §§6520 and 6521, but exclusive of all property in which the decedent held a life interest or held as a joint tenant, does not exceed $20,000.

2. The estate consists of the following property:_ _[Describe property and give estimated value]_ _.

3. Liens and encumbrances on the property at date of death were as follows: __[Describe liens and encumbrances and state amounts if any exist]_ _.

4. Petitioner(s) _ _[is/are]_ _the_ _[ executor named in decedent's Will/spouse of the decedent/guardian of decedent's minor child/personal representative of decedent's estate/decedent's adult child who was a minor on the date of decedent's death]_ _and _ _[is/are]_ _entitled to an assignment of the entire estate under the provisions of California Probate Code Sections 6600-6615 as follows:_ _[State proposed disposition of estate. Usually 100% to surviving spouse or minor child(ren)]_ _.

5. All expenses of the last illness, the funeral, and administration_ _have been paid/will be paid before the hearing on this Petition, if such expenses exist]_ _.

6. The names, addresses, ages, and relationships of all heirs, legatees, and devisees of the decedent are as follows:_ _[List - These are all interested parties of the estate. This includes persons named in the Will, known creditors, the IRS, California Franchise Tax Board, or any other party]_ _.

WHEREFORE, Petitioner prays that the entire estate be assigned to _ _ _ _, that there be no further proceedings regarding the estate, and that such other relief be granted as the court considers proper.

Dated: _ _ _ _                         __[Signature]__

_ _ [Typed name]_ _

Petitioner

__[Signature]__

_ _[Typed name]_ _

Attorney(s) for Petitioner [if Attorney(s) are used, exclude if self-filed]

For a .pdf sample form provided by the Santa Clara County self-help website, click the following link: Sample_Petition_to_Set_Aside_an_Estate.

Additionally, a Notice of Hearing might be required if there are multiple interested parties in the estate. To file a Notice, use form DE-120, Notice of Hearing. This form is used to prove that notice was given to the interested parties listed on the Set Aside Petition. This is a multi-step procedure that consists of the following:

i-File the completed Set Aside Petition, with the DE-120 Notice of Hearing Form, along with a copy of each document, with the Superior Court where decedent resided. Only the first page of the Notice of Hearing form needs to be filled out when filing it alongside the Set Aside Petition. The second page will be filled out later once you receive it back from the court. Once filed, the Court Clerk will assign a hearing date for your petition, along with the Judge, Court Room, Department, and time of hearing. There is a fee associated with this filing this form ($395.00 as of June, 2011). Procedure varies by county, but normally a copy of the Set Aside Petition and a copy of the Notice of Hearing will be returned to you, both containing the hearing date information.

ii-Insert the hearing date information into form DE-120, if it has not already been done so by the court clerk. Now you can complete the second page of the Notice of Hearing. 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 Set Aside Petition to all interested parties. Interested parties include but are not limited to the executor or administrator of the estate, all heirs of the decedent, all persons who have an interest in the estate, or have asked for Special Notice, and any known creditors. All parties must be served with Notice at least 15 days before the hearing date. Make sure to send a copy of the Set Aside Petition with the hearing date information on it.

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.

Please note that although this procedure can prove to be much quicker and less expensive than a full probate, using a “Set Aside” procedure usually means that the recipient (surviving spouse or minor child) will become personally liable for all debts associated with the decedent’s estate assets. In plain english, should a surviving spouse use a Set Aside petition to obtain a decedent’s car with a mechanic’s lien on it, and should the surviving spouse not resolve the lien, the surviving spouse will then be personally liable for the lien. One of the main advantages of a full probate is that all liens and encumbrances (such as loans) are usually stripped of the asset before they pass to heirs/beneficiaries. Please be sure to address this and possible tax issues with an attorney before proceeding with a Petition to Set Aside the Estate.