Do we need to go to probate court?

1 answer | Last updated: Sep 24, 2016
Curtiss asked...

My father just passed away and he had a living trust written for my sister and I to be the beneficiaries with my sister being the executor. Before my father died, he purchased a town home just a few months prior and paid cash for it. He never put the title deed in his living trust. In his trust, it states, all property, jewelry, etc... to be given to us. My mother has long past away and it's just my sister and I. Since the deed wasn't put into the trust, will we still need to go to probate? We contacted a lawyer and he said that we would have to go through probate and it would be a mandatory 4% of the selling price of the home plus the legal fees and a minimum of 10-12 months before the title is transferred because the courts are so backed up. Is this true?-- and if it is, would it be too difficult for me to do all the paperwork myself and save the attorney fee costs? By the way, we all live in California. Thank you so much for any advice!

Expert Answers

Judy and Fred co-mediate family property and financial conflicts, and each work individually as mediators as well. Judy Barber, a mediator and family business consultant, assists clients in resolving overlapping family and money conflicts so they are better able to make sound estate planning decisions. Frederick Hertz is an attorney and mediator who specializes in resolving co-ownership matters involving families, siblings, spouses, cohabitants and domestic partners.

California Probate Code Section 850 allows a variant approach, called a Heggstad Petition (named after an appellate decision in a case involving a family named Heggstad), which allows you to ask the court to include the town house in the trust, as if your dad had put the deed into the trust. This approach generally is much more efficient than taking the property through probate, and you should be talking with an experienced probate attorney who is familiar with such a process. The lawyer will need to evaluate the costs and benefits of each approach, but in most cases you don't have to set up a full fledged probate in this sort of situation.