What do I do when my spouse dies in Sonoma County California?
If your spouse did not leave a will or trust and you own real property and bank accounts are in the deceased spouse’s name – Start Here.
You will have to open a probate proceeding with the Sonoma County Superior Court. A detailed process can be obtained here from our site.
Once letters and a probate order have been approved by the court you as a spouse will have the power to control the deceased bank accounts, pay bills and generally prepare to have any and all property transferred to you. California Community Property Laws dictate that a surviving spouse receive the deceased spouses share of the community property upon death. The Superior Court of California still needs to approve this and that will happen at the end of the Probate. The Probate process usually takes at least a year, but if there is no one contesting the probate, Letters of Administration can be issued within a month after Death. This will depend on the backlog of the court and calendar. It will also depend on the speed and accuracy of your Santa Rosa Probate Attorney in getting all the necessary paperwork in front of the Judge. When the Final Report is approved and ordered by the court, that order will need to be recorded with Sonoma County Recorder’s Office. That order will transfer Title from your spouse to you. You can apply to not have your property re-assessed at this time so that the value of your property does not get taxed at a higher rate. See Form Here. A very important factor will be assigning a federal tax id to the Estate and filing a final return and making all proper tax elections so that you take advantage of all applicable Estate Tax Exclusions. You will also need to apply with the Department of Health Services to make sure that all debts have been paid. If you end up being the Administrator or Executor of the Estate you will be held personally liable for any and all costs (taxes, lawsuits, debts) associated with the administration of Estate. It is not a job to take lightly and a Santa Rosa Attorney should spell all this out to you in a Free Confidential Consultation prior to your case.
If your spouse did leave a will and you own real property and bank accounts are in the deceased spouse’s name – Start Here.
Since your spouse has a will, the will itself must be authenticated by the Superior Court of California. To Authenticate a will a probate Process must be initiated in the County in which the Decedent owned real property. A detailed process can be obtained here from our site.
You will need to submit paperwork to the court along with an original copy of the will itself. Wills are not complex but there are formalities that every will must have. For a will to be executed it needs to have a couple of items that are very important:
- Identification of the testator or will maker. Example “ I John Jones of Santa Rosa, California”.
- Identification of Assets of Testator. Example “Do hereby give my real property located at 123 Birch St., Santa Rosa, California, 95555”.
- The testator must sign the will or someone that has the capacity to sign such as a conservator.
- The signature of two disinterested witnesses (people that are not beneficiaries) that saw the testator sign the will.
- Sidebar: A will can be a hand written letter from the testator, spelling out items 1,2 and 3 above. It is called a holographic will and will need to be signed by the testator or will maker. You can have a computer generated holographic will but there are a couple of more requirements that make it slightly more complex. A holographic will does not need to be signed by two disinterested witnesses or any witnesses to be a valid executable will.
If your spouse did leave a Trust and you own real property and bank accounts are in the Trusts name – Start Here.
Revocable Living Trusts(RLT) became very popular in the late 70’s and 80’s and are an excellent device to avoid probate and unnecessary legal fees and usually puts assets into the hands of the Successor Trustee or Surviving Spouse very quickly and efficiently. If your spouse devised a trust it means that they had a plan that included, you and your children and that they were not only smart but they had a heart and wanted you to be taken care of. RLT’s can be done without court supervision which is very fast and efficient, however, the legal process must be followed. A trustee will be held liable for any claims or violations of their fiduciary duty that they owe creditors and beneficiaries. To administer the trust the successor trustee:
- Notification of Trustee:
- The identity of the settlor(s) of the trust and the date of execution of the trust instrument.
- The name, mailing address and telephone number of each trustee of the trust.
- The address of the physical location where the principal place of administration of the trust is located, pursuant to [CA Probate Code] Section 17002.
- Any additional information that may be expressly required by the terms of the trust instrument.
- A notification that the recipient is entitled, upon reasonable request to the trustee, to receive from the trustee a true and complete copy of the terms of the trust.
- Put this disclaimer on the notice: “You may not bring an action to contest the trust more than 120 days from the date this notification by the trustee is served upon you or 60 days from the date on which a copy of the terms of the trust is mailed or personally delivered to you during that 120-day period, whichever is later.”
- Affidavit of Death – This is a simple transfer form that passes property ownership from the family trust to the survivor’s trust, It basically states that one of the grantor’s has died and that the specific piece of real property now is the property of the surviving spouse’s trust. The form is very straight forward, signed by the successor trustee and notarized. Last step is to record with the county. See Form Here.
- 401K’s IRA Securities —- Most IRA’s and 401K’s are not part of the Trust and need to be rolled over into the surviving spouses IRA and or 401K. If any securities do not have beneficiaries or they are not named into the trust.
Law Office of James A. Zakasky
50 Old Courthouse Square, Suite 605 Santa Rosa, Ca 95404
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