New Medi-Care Recovery Law

Probate Made Easy

Certified Probate & Trust Specialist 

As a Certified Probate & Trust Specialist you can rest assured that as a Real estate professional, I have the understanding of the Probate transaction and can represent sellers or buyers in probate transactions, as well as investors looking to purchase probate properties. 

Thinking of Selling or Buying Probate Properties?


For individuals who die prior to January 1, 2017, the current recovery rules will apply, however, a new day will arise starting January 1, 2017.  Starting January 1, 2017, homeowners will longer have to choose between healthcare or passing their home to their children.  CANHR has provided a booklet which outlines applicable rules for both the current law, and the new law.

What is Medi-Cal?

Medi-Cal is California’s version of the Medicaid program that is funded jointly by the state and federal governments. It is designed to provide free or low-cost medical assistance for low income or low-resource individuals. There are many different Medi-Cal programs, and eligibility may depend on factors such as age, disability, income or assets. Covered California is California’s version of the Affordable Care Act’s health insurance exchange. It is not a Medi-Cal program. Any tax credits or subsidies received through Covered California are not subject to Medi-Cal recovery.

What is Medi-Cal Recovery?

When a Medi-Cal recipient dies, the state can seek repayment for the cost of certain services received that were paid for by Medi-Cal.

What is Current Law?

For the past 20+ years, California law has allowed claims on the estates of those who received any Medi-Cal benefits when they were 55 years of age or older, regardless of the medical services received or whether recipients were in a nursing home. After the Medi-Cal recipient dies, the state will send the heirs or survivors an “estate recovery claim” asking for payment for the amount of Medi-Cal benefits paid on behalf of the deceased individual. The state does not put a lien on the home and the state does not take away your home. The state will, however, try to collect, and, if you cannot get the claim waived and still cannot afford to pay, the state will negotiate a “voluntary lien.”


9 Ways To Avoid Probate

Savvy California homeowners usually choose living trust as their estate planning tool of choice. A trust offers the ultimate “control from the grave” as it enables individuals and families to leave clear, executable instructions on how their assets should be distributed upon their death. Having a trust in place also avoids probate in California. Compared to the cost and inconvenience of probate, a living trust, which, on average, costs around $2,500, is a true bargain. Probate of assets in California usually ends up costing tens of thousands of dollars.

In addition to a living trust, there are other exceptions to probate. We are going to go over all of them in this post.

 1) Living Trust

If the home is vested to a Living Trust, then probate is not needed. The reason why probate is not necessary is that the Living Trust owns the property, not the decedent. The Successor Trustee is in charge and should he or she decide to sell the property, they can accept an offer and sign the documents necessary to close escrow without any interference from the probate court.

2) Joint Tenancy

Joint Tenancy doesn’t always avoid probate, but it can if certain conditions are met. If the property is vested in joint tenancy, then the question is whether all joint tenants have passed away. Probate is only necessary if ALL joint tenants have passed away. Otherwise, the property simply passes to the next joint tenant who is alive.

For example, if mom and dad vested their home as joint tenants and dad dies first, probate is not necessary. Instead, an Affidavit of Death of a Joint Tenant would be recorded for dad with the county recorder, along with a certified death certificate. Then, when mom dies, a probate would be needed.

3)  Community Property

If mom and dad vested their home as community property, then title passes to the surviving spouse unless the deceased spouse left a will. Theoretically, mom and dad each own 50% of the home. Thus, mom could will her 50% to her favorite charity or to anybody she chooses; if this were the case and mom’s estate is valued over $166,250 starting 1/1/2020, then probate would most likely be required.

In practice, if a house is in community property and the surviving spouse wants to sell the house, the title company will often ask all children to sign off to close escrow without the need for any probate court involvement. Because dad or mom may dispose of his or her half of the community property in his or her will or trust, if no estate plan has been put in place, the surviving spouse may be forced to go to court and petition for a court order that passes the deceased spouse’s half of the community property to the surviving spouse.

Some title companies will allow surviving to close without any type of court order if he or she signs the following form: “Affidavit of Surviving Spouse – Succeeding to Community Property (California Probate Code Section 13540).

4) Community Property with Right of Survivorship

Beginning July 1, 2001, husband and wife can vest their home as community property with right of survivorship. Property owned in this form apparently retains all the features of community property (including receipt of a new cost basis on death for both halves under IRC §1014) except that the property passes on death to the survivor, without any potential problem presented with community property.

If mom and dad have their home vested as community property with right of survivorship, then upon the death of the first spouse, the surviving spouse automatically gets the house. However, upon the death of the last surviving spouse, a probate is necessary. Because neither husband nor wife can will their 50% away, this is sometimes called the “I Love You Way of Holding Title” as it puts restrictions to how the property may be used by the surviving spouse.

5) Revocable Transfer on Death Deeds (RTOD)

This method is sometimes called “a poor man’s trust.” On September 21, 2015, a new method of transferring real property without probate or trust was enacted in California. Originally, from January 1, 2016, until January 1, 2021, a person may transfer certain real property on death by a revocable transfer on death deed (RTOD). California Senate Bill No. 1305 has extended the RTOD to January 1, 2022, so Californians can still take advantage of RTOD until 2022.

Here’s the way it used to work. The homeowner would simply add the beneficiary on the RTOD and when the homeowner passes away, the beneficiary would automatically be entitled to the house, without any sort of probate proceeding.

However, the situation was straightforward only until Prop 19 started taking into effect on February 16, 2021. After this date, homeowners trying to utilize RTOD in California will have to follow the law put in effect by Prop 19. Specifically, this affects parents who want to transfer their property to their children. The new Prop 19 requirements mean that:

  • The property must be worth less than 1 million dollars;
  • The children must claim the property as their primary residence.

Furthermore, RTOD was and is a well-intended, but likely, flawed piece of legislation. Based on our anecdotal evidence, many title companies are not fond of this estate planning vehicle and often refuse to insure a good title fearing potential fraud. The purported simplicity of the procedure exposes Californians, especially seniors, to fraud and undue influence. A relative or even a stranger may cajole a senior homeowner into signing the Revocable Transfer on Death paperwork without the homeowner fully understanding that they are basically giving their home away. This and the fact that RTOD will expire sooner or later makes this a less desirable option for many homeowners.

6) Spousal Petition

When a person dies intestate (meaning a person died without a will), leaving real property that passes to his or her surviving spouse or registered domestic partner under Prob C §6401, or dies testate (meaning a person died with a will) leaving all or a part of his or her property to the surviving spouse or partner, the surviving spouse or partner may file a “Spousal Property Petition” to receive the real property without probate. Prob C §§13500, 13502; Fam. C §297.5(c).

If the house is community property or if a will was left by the deceased spouse giving the house to the surviving spouse, then a spousal petition would be successful. Probate normally takes about 1 year to complete. However, a spousal petition (Form DE-221) would only take 3-4 months depending on the court schedule.

There are several important caveats when using this “fast track” Spousal Property Petition.

The house must be acquired during the marriage. In California, there is a legal presumption that all property acquired during the marriage is community property (except for inheritance or gifts). Thus, the surviving spouse would already own 50% of the house and all the spousal petition would do is petition to put the other 50% of the deceased spouse’s interest in the house into the surviving spouse’s name.

One spouse passed away and the house is community property and the surviving spouse wants to sell the house.

The names and addresses for all heirs need to be provided on the spousal petition to receive notice of the court date.

Once approved by the probate judge, the probate judge will sign the Order (Form DE-226). You will in turn give the certified order to escrow to close your escrow transaction.

7) Heggstad Petition

When a homeowner sets up a trust, normally, all real property will receive a new grant deed (this is known as funding the trust). Upon deeding the house to the trust, the trust owns the house. However, from time to time, the owner of the house might refinance the house and some lenders will ask that the house be deeded back to the homeowner prior to the refinance. A problem arises when the homeowner passed away and the house was never deeded back into the trust. Will probate be needed in this case?

There is a procedure known as a “Heggstad Petition” named after a 1993 case allowing the house to be put back into the trust. Whether or not a Heggstad Petition will be successful depends on the facts and circumstances involved. Our firm has successfully completed many Heggstad Petitions. If there is a trust with a “Schedule A” that lists the subject property and there is a “Pour-Over Will” that states all property shall be poured over to the trust, then almost always it will be successful.

However, what if there is no “Schedule A” and the house is nowhere mentioned in the trust, plus there is NO pour-over will? Then it becomes much more challenging. In these situations, we use a new landmark case: Ukkestad v RBS Asset Fin., Inc. (2015) 235 CA4th 156, 164. This case stands for the proposition that a general statement in the trust instrument that the grantor assigns all the grantor’s interests in all real and personal property is sufficient. Some probate judges will approve the “Heggstad Petition” even when there is no pour-over will.

In this procedure, there will be a court hearing date and all named heirs along with those named in the trust will be notified of the court hearing date. If the case is approved, then the probate judge will sign an order stating the house is part of the trust’s assets and escrow need will a certified order to close the real estate transaction. This procedure takes about approximately four months to complete.

Real Property in Small Estates: When Real Property Value is Less than $166,250.

Effective 1/1/2020, if the aggregate value of the decedent’s property exceeds $166,250, then a probate is necessary. If the decedent owns any type of real property that is worth less than $166,250; probate is not necessary.

However, either an 1) Affidavit RE Real Property of Small Value or 2) Petition to Determine Succession of Real Property will be necessary.

8) Affidavit RE Real Property of Small Value ($55,425 or Less)

If the decedent owned raw land or a fractional interest in real property and the value on the date of death is less than $55,425, AND at least six months have elapsed since the date of death of the decedent as shown in the certified copy of the decedent’s death certificate, then one may use this procedure to avoid probate.

However, to use the Affidavit RE Real Property of Small Value (Form DE305), one must hire a probate referee to appraise the value of the subject property and sign the Inventory and Appraisal (Form “DE-160”) under penalty of perjury stating the value on the form.

This procedure cannot be used if there is a probate proceeding happening or being conducted in California for the administration of the decedent’s estate. Furthermore, the affidavit requires a declaration that all funeral expenses of last illness, and all known unsecured debts of the decedent, have been paid. 10 ·

One would submit both forms to the probate court and if all is in order, then the court clerk will approve it along with a certified seal. ·

This procedure does not require a court hearing date but does need all heirs to sign off on it. This process might take approximately 2 months.

The “Affidavit RE Real Property of Small Value” is typically used for situations where the decedent owned raw land under his or her own name.

9) Petition to Determine Succession to Real Property ($55,425 to $166,250)

For real property with a value between $55,425 to $166,250, you can avoid probate by filing Form DE-310, which is known as “Petition to Determine Succession to Real Property”.

You can use this form if at least 40 days have elapsed since the date of the decedent’s death and is no probate being conducted in California for the administration of the decedent’s estate.

The gross value of the real property needs to be between $55,425 to $166,250. You would hire a probate referee to prepare the Inventory and Appraisal form, which is Form DE-160 to reflect such value. The idea is that the court wants an independent probate referee to confirm that the value is indeed between $55,425 to $166,250.

This procedure will require a court hearing to be approved and signed off by the probate judge. Depending on the court calendar, this process may take between 2 to 4 months to complete. The court will ask that all heirs be given notice. This means you must put all names and addresses of all heirs on the Petition to Determine Succession to Real Property form.

While this petition in theory avoids probate, the court is still involved and the practical use of the petition in California is limited: Anyone with knowledge of the California real estate market will confirm that finding real property worth less than $166,250 in the state is nearly impossible.

Certified Probate & Trust Specialist 

As a Certified Probate & Trust Specialist you can rest assured that as a Real estate professional, I have the understanding of the Probate transaction and can represent sellers or buyers in probate transactions, as well as investors looking to purchase probate properties. 

Thinking of Selling or Buying Probate Properties?

California Probate Cost

You did your own research and then checked with a qualified California attorney: probate cannot be avoided. For you to step into your parents’ shoes and become a rightful owner of the property, the house must go through the probate process at a local court.

The next question on every heir’s mind is usually the following: How much does it cost to probate a house in California? 

In this post, we will break down probate costs in California, so continue reading to find out what it takes to go through the probate process.

There are several different fees involved in California probate. First, is the attorney fee. The fee is set by the State of California and is paid once the judge signs the order for final distribution. In probate, the personal representative also receives compensation for his or her services to the estate. This is known as “statutory compensation,” and is also paid at the conclusion of the case.

Both the statutory attorney’s fees and the statutory compensation are calculated based on the value of the estate, in the same manner. The fee base is calculated pursuant to Probate Code §10810 as follows:

    • 4% on the first one hundred thousand dollars ($100,000).
    • 3% on the next one hundred thousand dollars ($100,000).
    • 2% on the next eight hundred thousand dollars ($800,000).
    • 1% on the next nine million dollars ($9,000,000).
    • ½ of 1% on the next fifteen million dollars ($15,000,000).


For all amounts above twenty-five million dollars ($25,000,000), a reasonable amount to be determined by the court.

For example, if the total value of the estate was $1,000,000, then the final petition would show the calculation as follows for attorney fees and personal representative fees:

    • 4% * $100,000 = $ 4,000
    • 3% * $100,000 = $ 3,000
    • 2% * $800,000 = $16,000

                                Total: $23,000

For an estate with a value of $1,000,000, the statutory attorney’s fees are $23,000 and the personal representative’s compensation is also $23,000. Remember that both fees are calculated using the same guideline. This is important to understand since most other attorney fees in different areas of the law are not statutory so they may vary from one attorney to another and can be negotiable to a certain degree.

In California probate, every licensed attorney is going to charge their clients using the same formula. The upside of the statutory fee is that it costs the same to hire a certified, seasoned specialist as well as an inexperienced lawyer who only dabbles in probate.

Most of the attorney fees are paid after the probate process is over and the judge has signed the order of final distribution. However, while most of the attorney fees are paid by the estate (as opposed to out-of-pocket), some out-of-pocket expenses are necessary as well.

On average, the initial out-of-pocket probate expenses in California are about $2,500. Who pays the fees? Most of the time, the personal representative pays the $2,500 out of pocket to the attorney. This is used as a retainer for the court filing fees and other expenses. At the end of probate, the person who paid the $2,500 is reimbursed by the estate.

There are other costs disclosed on the final petition, which include court filing fees, the bond premium, the publication fee (which is mandatory), and the probate referee’s fee.

Below is an estimated breakdown of what you can expect to pay out of pocket in a California probate:

    • Initial court filing fee: $465
    • Publication: $205 – $1,000 (on average $250 – $500)
    • Probate Referee: The fee is 1/10 of 1% of the estate value (i.e. if house is appraised at $500,000, then 1/10 of 1% is $500)
    • Bond: Probate generally takes one year to complete; therefore, the court imposes a bond on the personal representative to ensure that the personal representative does not run away with the money. The fee will depend on the value of the estate (i.e., if the net value of the estate is $200,000, then bond costs might be $500 – $800 for the year depending on your credit score). Keep in mind that an experienced attorney might be able to convince the judge to waive the fee.
    • Final petition court filing fee: $465

 Although not as common, additional fees may include heir hunter fees. This is needed in situations when some of the heir whereabouts are unknown or the family suspects that there may be additional unnamed heirs (heirs whose names are not known to the family, but they are aware of their place in the family tree).

For instance, there are three siblings who stand to inherit the house, and they are aware that the late father had another child from a prior relationship, however, the family does not know the half-sibling’s name and current address.

In this case, the law firm may need to hire an heir hunter—a company that specializes in locating missing heirs. (By law, all heirs must be notified.) Heir hunter’s services may cost anywhere from $700 to thousands of dollars, depending on how complex the search is. For example, locating an heir whose name and approximate local address is known (even if it’s from a decade ago) will cost less than finding a nameless heir abroad.

The attorney’s statutory fees, personal representative’s compensation, and other costs are deducted from the estate’s cash on hand, and the remaining amount is what is distributed among the beneficiaries according to intestacy laws, or to the decedent’s will, if applicable.

For example, the estate has a total of $400,000, which is the sale proceeds from the sale of the decedent’s home. The attorney’s fees, personal representative’s compensation and costs are deducted from that $400,000, and the remaining amount is distributed among the beneficiaries accordingly.

The beneficiaries do not receive their distributive share until the judge signs the final order for final distribution, just like the attorney fees and the personal representative fees.

In probate, only the real estate professionals get paid at the close of escrow while creditors get paid prior to the final petition stage. Everyone else (attorney, personal representative, and heirs), is paid at the close of probate.

Is probate expensive? Yes, especially if compared to the cost of a living trust, which can be set up many years before the settlor (the maker of trust) passes away. 

Certified Probate & Trust Specialist 

As a Certified Probate & Trust Specialist you can rest assured that as a Real estate professional, I have the understanding of the Probate transaction and can represent sellers or buyers in probate transactions, as well as investors looking to purchase probate properties. 

Thinking of Selling or Buying Probate Properties?

Probate and Creditors

Very few people are completely debt-free. When a person passes away in California and they have no trust, the case goes to probate. Part of the probate process is dedicated to notifying and paying off the creditors. But do you have to pay all the creditors? Can some of the debts be wiped out? Is there a time limit on how long the creditors can keep knocking on your door, so to speak?

Keep reading to find out exactly how paying off debt works in probate and what can be done to minimize the estate’s liabilities!

The first few months of the probate process are dedicated to establishing who is in charge and, if the decedent had any real estate, deciding whether to sell it. In many cases, heirs choose to sell the property to satisfy the debts of the estate and to share the remaining proceeds amongst themselves.

The next four months of the probate process is about notifying all known creditors and government entities of the decedent’s passing, as well as paying the decedent’s debts. The personal representative provides the attorney with the information of any known creditors of the decedent, including credit card statements, medical bills, tax liabilities, and other bills.

Certain government agencies must be notified by law

The probate attorney is required to give notice of the probate to all known creditors. This is merely a notice. Estate is not obligated to just start sending checks out.

If the creditors want to get paid, they must file a claim against the estate with the court. If money is owed to any California public entity, they must file their claims with the court as well (See Probate Code §9200). When certain state agencies have claims against the estate, the Probate Codes provide that their claims are not barred until the agencies are notified of the administration of the estate. Attorneys are required by law to give notice to these state agencies:

    1. California Franchise Tax Board
    2. California Department of Health Care Services
    3. California Victim Compensation and Government Claims Board
    4. Employment Development Department
    5. State Board of Equalization

These agencies must file a claim within four months from the date the attorney mails the notice unless additional time is provided under Probate Code §9201.

What about credit card debt?

When it comes to unsecured creditors (such as credit card companies), it is important to keep in mind Code of Civil Procedure Section 366.2. It provides a one-year statute of limitation for creditors to attempt to collect a decedent’s debt.

The statute applies to all unsecured creditors and states that if one year has passed since the date of death, the estate is not liable to pay the debt. Since this code sets a one-year statute of limitation (1-year drop-dead provision), any unsecured creditors must file their claims within one year from the decedent’s date of death.

An experienced probate attorney sends out the Notice to all creditors immediately upon the issues of the Letters to start the clock ticking. Creditor’s claims must be filed within four months following the issuance of letters, or 60 days after the notice was mailed or personally delivered to the creditor, whichever is later (Probate Code §9100(a)).

Even if a credit card company files a claim, an experienced probate attorney will find a way to reject it. In the end, the credit company will have to decide whether they want to fight the rejection. In most cases, they will find it impractical to hire a lawyer with an hourly rate of hundreds of dollars to fight a claim of several thousand dollars. In the end, heirs in California have a good chance that they will not have to pay the credit card debt of their mom or dad.

When will the heirs get their money?

Once the four months have expired, then the probate attorney can file the Final Petition with the court to close out the probate case. This is important because neither the probate attorney nor the heirs can receive any money until Final Accounting is approved. The court does not allow the Final Accounting to be filed unless the four-month creditor claim period has passed.

Once the judge signs the Order for Final Distribution, the estate can proceed with distribution to the heirs. Each beneficiary is required to sign a Receipt on Final Distribution which is required to itemize what each person is receiving from the estate.

These receipts are then filed with the court along with the necessary paperwork to close out the estate. At this point, the probate is done.

Certified Probate & Trust Specialist 

As a Certified Probate & Trust Specialist you can rest assured that as a Real estate professional, I have the understanding of the Probate transaction and can represent sellers or buyers in probate transactions, as well as investors looking to purchase probate properties. 

Thinking of Selling or Buying Probate Properties?