Two Local Rules for Probate in San Diego
Two local rules affect two different types of petitions that can be filed in the San Diego probate court
The first of those is a petition to determine succession a real property.
It’s a mouthful but it’s the petition that gets used when you’re dealing only with a piece of real property. And that piece of real property is worth less than $150,000 for every place in California. There’s a Judicial Council form that gets used for this petition (but only in San Diego County) because of San Diego’s local rules do you have to supply additional information. San Diego has a local rule that will ask actually for quite a bit of information. But just to give you some idea, you’re not only going to have to tell the court about the property itself. You’re going to tell the court about how the property was acquired, when it was, for how much, under what circumstances, the incomes of the two spouses, and the assets the two spouses brought into the marriage, etc.
There’s actually quite a list that goes on from there. The rationale behind it is: the court wants to understand if this is in fact just a transfer between spouses or if there are community property issues that are involved or if they’re separate property issues that are involved. At any rate, if you don’t supply this, your petition is going nowhere so make sure that you’re cognizant of this local rule.
The second local rule I want to discuss is foreclosing probate in San Diego County.
When I say closing probate, I’m talking about a regular probate petition when you’ve got that, in frankly most Counties (certainly in Southern California) what the courts are expecting to see, is a petition that says, “After I’ve paid the executor after I’ve paid the executor’s attorney after any reimbursements have been paid”, most courts are looking for language that more or less mirrors the terms of the will itself (assuming there is a will). As an example, if we’ve got a family with let’s say, three children, the court is expecting to see a petition that says something like, “leave everything else in three equal shares to the three children.
In San Diego, that’s not going to fly and your petition will wind up getting continued to laying the close of your probate.
In San Diego, you have to give the courts specific numbers when you’re dealing with cash. If you’re dealing with other items like an interest in real property that’s gonna get deeded out, then you’ve got to be specific about that. What the court is expecting to see is that you are going to tell it down to the last penny how this estate is being distributed.
So using that same family with three children, if after we’ve paid everybody else there’s $600,000 left, your petition has to say, “give $200,000 to each of the three children”. And the reason this is happening is in San Diego (unlike most other counties) the minute order of the court is the order that’s going to get used. The court does not expect… the court doesn’t even want a formal order to be submitted. It’s that minute order that is going to be used to distribute the estate.
And importantly for you, because there’s one last step in probate, submitting an ex parte petition for discharge. That order for discharge is going to have to show that those numbers that are in your minute order, are the numbers that are reflected in the distributions that were actually made. That’s what will allow the court to sign the final order (the ex parte petition) for discharge and allow you to close probate. If you need to do probate or have questions about completing probate, do not hesitate to contact us today!