How to File a Will & Family Trust in California

By Rebecca Sims

When a loved one dies, family and friends can be left with the complicated and sometimes confusing job of deciding how to distribute the property and debts of the deceased. If the family member left substantial assets, or if assets are held in a trust, it might be necessary to settle the estate in probate court. Probate courts deal with transferring property and money to a decedent's heirs and beneficiaries in a fair and orderly manner. They can also decide whether or not a will is valid.

Probating a Will

It isn't always necessary to file a will or trust in probate court in California. If the value of the estate is less than $150,000 and the will is uncontested, there's a simple process for transferring property to the beneficiaries. There are lots of exceptions to this monetary limit, however. The $150,000 estate rule does not apply to real property, such as a house or boat. Once you determine that a will needs to go to probate court, the person in possession of the will has 30 days to file the original will in the Superior Court of the county where the deceased resided prior to his death.

Petition for Probate

The custodian, or other interested person, must file a Petition for Probate (Form DE-111) to start the case, along with a death certificate and required filing fees. In California, any person with a financial interest in the estate can file the petition. There are often additional forms that need to be filed depending on the nature and complexity of the case. The California Court's website, and other online legal websites, have forms available for downloading. Once a petition is filed, a court date will be set and all interested parties will be notified of the proceedings.

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Family Trusts

Often, part of an estate is held in a family or living trust, which is a legal arrangement that allows one person to hold assets for the benefit of another. Assets are held for family members who are the beneficiaries of the trust. Family trusts do not always have to be probated and are often set up specifically to avoid probate. Deciding whether or not a trust needs to be probated can be complicated. For example, if the deceased person wrote a will leaving money and assets to a family trust above a certain dollar amount, the trust may need to be probated. A will that leaves assets to a trust instead of to individual people is called a "pour-over" will. This means that the assets are "poured" into a trust. If the assets exceed a certain amount in a pour-over will, the trust may have to be probated.

Probating a Trust

File trust documents with the probate court when necessary in exactly the same manner that you would file a will. Contact the Superior Court in the right jurisdiction, typically the county where the decedent resided at the time of his death, within 30 days of the person's death. Will and family trust documents can be filed at the same time. If the estate includes a trust, but the trust isn't being probated, all of the beneficiaries will still be notified of the probating of the will by the trustee.

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Is a Living Trust Liable or Subject to Probate?

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