Thinking About Adding Your Child to Your Home Deed? Read This First.

Thinking About Adding Your Child to Your Home Deed? Read This First.

Imagine for a moment that you have lived in your Vista home for thirty years. You paid off the mortgage, raised your children there, and watched the neighborhood grow around you.

Now you are thinking about the future. You want to make sure that, when the time comes, your daughter receives the house without probate, unnecessary expense, or a legal mess.

A well-meaning friend gives you some advice:

“Just add her to the deed. It is easy. Then she will get the house when you die, and you can avoid probate.”

It sounds like the perfect shortcut.

So you sign and record a new deed adding your daughter to title, perhaps as a joint tenant. You go home feeling like a proactive planner. You believe you have just saved your family thousands of dollars in probate expenses.

Unfortunately, the reality can be much more complicated.

Adding a child to the title of your California home is one of those estate-planning shortcuts that may create serious unintended consequences. Depending on how the transfer is structured, you may give up control, expose part of the property to your child’s financial problems, create tax complications, trigger gift-tax reporting issues, affect future property-tax treatment, or create problems with long-term-care planning.

In many cases, a properly prepared and funded revocable living trust can accomplish the probate-avoidance goal without creating the same risks.

First Things First: What Does a Deed Actually Do?

A deed is a legal instrument used to transfer an ownership interest in real property and establish how title is held.

When you add a child to your deed as a genuine co-owner, you generally are not simply giving that child a future right to receive the house after your death.

You may be giving the child a present ownership interest now.

That distinction matters.

Depending on the form of title, the deed language, the consideration paid, and other facts, adding a child to title may constitute a completed lifetime gift of part of the property. The IRS generally defines a gift as a transfer of property for which the transferor receives nothing, or less than full value, in return. You can review the IRS discussion of the federal gift tax here.

Once that transfer occurs, the consequences can be very different from simply naming the child as a beneficiary of a trust.

  1. Your Child May Become an Owner Right Now

Suppose you own your home outright and add your daughter to title as a co-owner.

In many cases, she now owns a legal interest in the property during your lifetime.

That means the house may no longer be entirely yours to control.

For example, if you later decide to sell the entire property and move into a smaller home, you will generally need the cooperation of all owners whose interests must be conveyed.

If you want to refinance the property, the lender and title company will ordinarily need to address the interests of all titleholders.

If your child refuses to cooperate, becomes unavailable, loses capacity, or simply disagrees with your decision, an otherwise routine transaction can become difficult or impossible without further legal action.

You may not be completely without remedies. Depending on the circumstances, co-owners can sometimes pursue partition or other judicial relief. California’s statutory partition procedures are found in the California Code of Civil Procedure, beginning at section 872.010.

But that is hardly the simple, inexpensive estate plan most parents had in mind when they added a child to the deed.

The important point is this:

Adding a child to title can mean giving up sole control of one of your largest assets.

  1. Your Child’s Financial Problems Can Become Your Property Problem

This is one of the most significant risks, and it is often overlooked.

Once your child owns an interest in your home, that ownership interest may become relevant to the child’s creditors.

Imagine that your son is responsible and hardworking, but something unexpected happens.

He causes a serious car accident and is sued for damages exceeding his insurance coverage.

His business fails.

He incurs substantial tax debt.

A judgment is entered against him.

He files bankruptcy.

In these situations, his ownership interest in the property may be treated as one of his assets.

A judgment creditor may be able to place a lien against the child’s interest. California’s judgment-lien statutes are addressed in the California Code of Civil Procedure, including section 697.310.

In bankruptcy, the child’s ownership interest may become part of the bankruptcy estate, subject to applicable exemptions and other protections. Under federal bankruptcy law, the bankruptcy estate generally includes the debtor’s legal or equitable interests in property at the commencement of the case. See 11 U.S.C. § 541.

Depending on the facts, a bankruptcy trustee may seek to administer the child’s ownership interest for the benefit of creditors.

The precise outcome depends on the ownership structure, available exemptions, the type of debt, and other circumstances. But the broader concern is real:

Your home can become entangled in legal and financial problems that have nothing to do with you.

A parent often adds a child to title because the parent trusts the child completely.

The problem is not always the child.

The problem may be the child’s creditors.

  1. The Capital-Gains Tax Issue Is More Complicated Than Most People Realize

This is one of the biggest reasons to obtain legal and tax advice before making a lifetime transfer of appreciated real estate.

What Is “Basis”?

In simplified terms, your tax basis is generally tied to what you paid for the property, adjusted for certain improvements and other tax events.

The IRS provides a detailed overview of basis in Publication 551, Basis of Assets.

Suppose you bought your home in 1990 for $100,000.

Over the years, you made qualifying improvements, and your adjusted tax basis is now $150,000.

The house is currently worth $900,000.

That difference between value and basis can become extremely important when the property is sold.

Lifetime Gifts and Inheritances Are Treated Differently

Property received by lifetime gift generally carries over the donor’s existing adjusted basis for purposes of determining gain, subject to detailed federal tax rules.

The IRS explains the basis rules for gifted property here.

Property acquired from a decedent generally receives a new tax basis determined under federal law, often based on fair market value at death. The IRS discusses the basis of inherited property here.

The governing federal statute is Internal Revenue Code section 1014.

That is the concept commonly referred to as a “step-up in basis,” although technically the basis can also adjust downward when property value has declined.

Consider the general difference.

If your child receives a property interest by lifetime gift, the child may receive some portion of your existing low basis.

If the child instead acquires property from you at death, the inherited interest may qualify for a date-of-death basis adjustment.

That distinction can substantially affect future capital-gains tax.

Why Adding a Child to the Deed Creates Complexity

It would be misleading to say that adding a child to title always causes the child to inherit your entire original basis or always lose the entire basis adjustment at your death.

The actual result can depend on:

whether title is held as joint tenants or tenants in common;
what percentage was transferred;
who originally purchased the property;
who contributed to the purchase price;
whether the transferred interest was a completed gift;
how much of the property is included in the parent’s taxable estate;
federal tax rules governing jointly owned property;
the value of the property at death.

Jointly held property can involve additional federal estate-tax inclusion rules under Internal Revenue Code section 2040, which can interact with the basis-adjustment rules under section 1014.

In other words, there is no reliable one-size-fits-all calculation.

What is clear is that an improvised lifetime deed transfer can produce a significantly worse income-tax result than a properly structured estate plan.

For a highly appreciated California home, the difference can potentially amount to tens or even hundreds of thousands of dollars, depending on the facts and applicable tax rates.

One More Tax Issue: Gift-Tax Reporting

Adding a child to title without receiving fair-market value in return may also constitute a gift for federal gift-tax purposes.

That does not necessarily mean the parent immediately owes gift tax.

However, depending on the value transferred, available exclusions, and other circumstances, the parent may have a federal gift-tax reporting obligation, including a possible requirement to file IRS Form 709.

The IRS explains the purpose of Form 709, United States Gift (and Generation-Skipping Transfer) Tax Return, and provides additional information in its Frequently Asked Questions on Gift Taxes.

Many homeowners complete deed transfers without ever realizing that gift-tax reporting may be part of the analysis.

  1. Proposition 19 and Property Taxes: Do Not Assume the Answer Is Simple

California property-tax law is another area where casual deed advice can be dangerous.

Proposition 19 significantly changed the rules governing certain transfers of property between parents and children.

Under current law, the former broad parent-child exclusion is much more limited.

For qualifying transfers of a family home, the child generally must use the property as a principal residence, satisfy filing requirements, and meet other legal conditions. The amount protected from reassessment is also subject to a value limitation.

The California State Board of Equalization provides an overview of the intergenerational-transfer rules in its official Proposition 19 guidance.

However, there is an important complication:

Not every deed adding a child to title causes an immediate reassessment.

California has specialized rules governing joint tenancies and “original transferors.” In some circumstances, creating a joint tenancy while the original owner remains on title may not immediately constitute a reassessable change in ownership.

The controlling administrative rule is California Property Tax Rule 462.040, Change in Ownership—Joint Tenancies.

Later events, however, may trigger reassessment.

For example, the property-tax consequences can change when an original transferor dies, when interests shift among joint tenants, or when title is later restructured.

The result depends heavily on:

the exact form of title;
who owned the property before the transfer;
who remains on title afterward;
the sequence of later transfers or deaths;
whether a Proposition 19 exclusion is available.

This is why homeowners should be cautious about statements such as:

“Adding your child to the deed will definitely trigger reassessment.”

or:

“Adding your child to the deed will definitely avoid reassessment.”

Either statement may be wrong.

The deed must be evaluated in context.

  1. What About Medi-Cal and Long-Term Care?

California’s Medi-Cal asset and transfer rules changed effective January 1, 2026.

Current California Department of Health Care Services guidance explains that asset limits again apply to certain Medi-Cal applicants and beneficiaries. DHCS provides a current overview in its Medi-Cal Asset Limit Frequently Asked Questions.

For certain individuals seeking Medi-Cal payment for nursing-home care, transfers of assets made on or after January 1, 2026 may be reviewed under California’s transfer rules.

Current DHCS guidance describes a 30-month look-back period for relevant transfers and states that:

transfers made before January 1, 2026 are not counted under the reinstated rule; and
transfers made on or after January 1, 2026 may cause a penalty that delays coverage.

You can review the current DHCS explanation here.

But this issue requires careful qualification.

Not every transfer creates a penalty.

Important exemptions and exceptions may apply.

The home in which a person lives may also receive special treatment under Medi-Cal asset rules. DHCS identifies the home a person lives in among assets that generally do not count toward the reinstated asset limit in its current Medi-Cal changes guidance.

Certain transfers involving spouses, disabled children, caregiver children, siblings with qualifying interests, and other circumstances may be treated differently under applicable law.

The lesson is not that every deed transfer will disqualify someone from Medi-Cal.

The lesson is this:

Do not give away part of your home without first considering how the transfer could affect future long-term-care planning.

A deed signed today can have consequences years later.

  1. A Revocable Living Trust Is Often the Better Tool

If your goal is to avoid probate and make administration easier for your children, a properly prepared revocable living trust is often a much better option than adding a child to title during your lifetime.

A living trust can provide several important advantages.

You Generally Retain Control

With a conventional settlor-controlled revocable living trust, you generally remain in control of the property while you are alive and have capacity.

You can typically:

sell the property;
refinance it;
change beneficiaries;
amend the trust;
revoke the trust;
buy a replacement property.

California law generally provides that a revocable trust may be revoked according to the trust instrument and applicable statutory procedures. See California Probate Code section 15401.

You do not need to make your child a present co-owner merely to provide for that child after your death.

Your Child Is Usually Not a Present Owner

A child who is merely named as a future beneficiary of your revocable trust generally does not own the house during your lifetime.

That distinction can help prevent the home from becoming exposed to the child’s personal creditors merely because the child may inherit in the future.

There is an important limitation:

A revocable living trust generally does not shield your assets from your own creditors simply because you transferred them into the trust.

California Probate Code section 18200 provides that, where the settlor retains the power to revoke the trust, trust property is subject to the claims of the settlor’s creditors to the extent of that power. You can read California Probate Code section 18200 here.

The benefit here is not magical creditor protection.

The benefit is avoiding the unnecessary creation of a present ownership interest in your child.

Better Preservation of Basis Planning

Property held in a conventional revocable trust is generally still treated as belonging to the settlor for federal income-tax purposes during life and is typically included in the settlor’s estate at death.

As a result, property passing at death often remains eligible for a basis adjustment under federal tax law.

The federal basis-adjustment rules are found in Internal Revenue Code section 1014, and the IRS provides a plain-language explanation of inherited-property basis here.

The exact result depends on the ownership structure, marital property characterization, trust terms, and tax facts.

But in many cases, a properly structured trust avoids the unnecessary lifetime gift of a low-basis property interest.

Probate Can Often Be Avoided

A living trust can avoid probate for the home—but only if the trust is properly funded.

That means the property generally needs to be correctly titled in the trust before death.

Simply signing a trust document and placing it in a drawer is not enough.

When the home is properly held in trust, the successor trustee can generally administer the property under the trust terms without opening a full court-supervised probate proceeding for that asset.

California law governs administration of trusts through the California Probate Code, Division 9.

Transferring the Home Into Your Own Revocable Trust Generally Does Not Trigger Reassessment

For a typical settlor-controlled revocable trust in which the person transferring the property remains the present beneficial owner, moving the home into the trust generally does not itself create a reassessable change in ownership.

California’s change-in-ownership rules for trusts are addressed in Property Tax Rule 462.160.

Again, the trust terms matter.

But this is one reason a properly structured trust can be far superior to casually adding another person to the deed.

So, Should You Add Your Child to the Deed?

The honest lawyer answer is:

It depends.

There are situations in which adding a child to title may be intentional and appropriate.

There may be family, tax, property-management, financing, or other reasons to use joint ownership.

But for many homeowners in Vista, Oceanside, Carlsbad, and throughout North San Diego County, adding a child to the deed creates risks that outweigh the apparent convenience.

Before making the transfer, ask:

Am I creating a present gift?
Will I need to file a gift-tax return?
What basis my child receive?
How will the property be treated when I die?
Could my child’s creditors reach the child’s interest?
Could a bankruptcy affect the property?
Will I need my child’s cooperation to sell or refinance?
What are the Proposition 19 consequences?
Could the transfer affect future Medi-Cal planning?
Is a revocable living trust a better solution?

Those are questions worth answering before the deed is recorded—not afterward.

Already Added a Child to the Deed? Do Not Panic.

If you have already added a child to title, that does not necessarily mean the situation cannot be improved.

Corrective planning may still be available.

But the options depend on important facts, including:

how title is currently held;
when the transfer occurred;
whether the child paid consideration;
whether a completed gift occurred;
whether a gift-tax return was filed;
whether liens or creditor claims have attached;
whether the child is willing and legally able to cooperate;
whether property-tax consequences have already occurred;
whether the transfer has affected basis or long-term-care planning.

Simply having the child deed the property back is not always a complete solution.

The original transfer may already have created legal or tax consequences.

That is why the title history should be reviewed before corrective documents are signed.

Protect the Home the Right Way

Your home may be your largest asset.

For many families, it also represents decades of work, sacrifice, and memories.

A “simple” deed transfer can create consequences that are anything but simple.

Thoughtful estate planning can help you preserve control during your lifetime, avoid unnecessary probate, plan for incapacity, reduce family conflict, and transfer property in a more deliberate way.

Duisters Giarratano, APC focuses on helping California families navigate living trusts, real-property transfers, probate avoidance, and estate planning.

If you own a home in Vista, Oceanside, Carlsbad, or elsewhere in San Diego County, make sure your plan is designed around your actual property, family circumstances, and long-term goals.

Visit sdcountytrusts.com to learn more or schedule a consultation.

This article is provided for general informational purposes only and does not constitute legal or tax advice. Reading this article does not create an attorney-client relationship. Estate planning, property-tax, income-tax, gift-tax, and Medi-Cal consequences depend on individual facts and applicable law. Consult qualified legal and tax professionals regarding your specific circumstances.

Do I Need Probate if My Parent Died Owning a House in San Diego County?

Do I Need Probate if My Parent Died Owning a House in San Diego County?

Imagine for a moment: You’ve just spent a long afternoon sorting through boxes in your late father’s garage in Vista. You find the original deed to his home, a charming California bungalow he’s lived in since the ’90s. You know he wanted you to have the house, but as you hold that piece of paper, a heavy question hits you: Do I actually own this now, or does the government have to get involved?

It is a question we hear regularly at our Vista estate planning law firm. People often assume that if there is a will, or if they are the only child, the transition of the family home is automatic.

The short answer is: In California, if a house is owned in a person’s name alone, it almost always triggers a court process. That is a typical lawyer answer for you, it depends, but usually, the answer is “yes.”

In this installment of our “Keeping it Simple” series, we’re going to pull back the curtain on the California probate process and look specifically at what happens when a parent dies owning a home in San Diego County.

Keeping it Simple: What is Probate?

Before we dive into the math, let’s define our terms. Probate is essentially a court-supervised “title-clearing” process. Think of it like a sports referee. The court is there to make sure the bills are paid, the taxes are settled, and the property is legally transferred to the right people.

If your parent’s name is the only one on the deed, the house is “stuck” in their name. Only a court order from the San Diego Superior Court can legally move that title from your deceased parent to you.

The Magic Numbers: $208,850 and $750,000

How do you know if you are headed for full probate or a shortcut? In 2026, California law uses two very important “thresholds” to decide how much court involvement you need.

1. The Small Estate Threshold ($208,850)

For anyone passing away in 2026, the general rule is that if the total value of the “probate assets” (things not in a trust or held jointly) is more than $208,850, you generally have to go through a full probate.

Given that the median home price in San Diego County is well above that mark, most houses owned by a single person will automatically push an estate into probate. A Vista estate planning lawyer will tell you that even a modest condo in North County usually exceeds this limit.

2. The Primary Residence Shortcut ($750,000)

Here is a bit of good news. As of April 2025, California introduced a simplified transfer rule for a primary residence. If the house was your parent’s main home and it is worth $750,000 or less, you might be able to use a simplified court petition instead of a full, multi-year probate.

What does that mean? It means less time in court and lower fees. However, if that Vista home is worth $751,000, you are likely looking at the full California probate process.

Why Your “Interest” Doesn’t Count (Yet)

You might be thinking, “But there’s a mortgage! The house is worth $800,000, but Dad owed $600,000. So the value is only $200,000, right?”

Unfortunately, no. The court looks at the gross fair-market value, not the equity. The “probate referee” (CA licensed appraiser) doesn’t care how much is owed to the bank when determining if you need probate; they only care what the house would sell for on the open market. This is a common trap that catches many families off guard. If you find yourself in this spot, reaching out attorney Vincenzo Giarratano to help you navigate these issues.

A protected family home and trust planning concept, representing the security and peace of mind a living trust can provide for San Diego families.

How do we Avoid Probate?

Does every house have to go to court? Not necessarily. There are three main ways a house avoids court entirely:

  1. The Revocable Living Trust California: If your parents were “planners” and placed their home into a living trust, you are in luck. The trust is a legal entity that doesn’t die. When your parent passes, the “successor trustee” (might be you) simply takes over. If the trust was drafted and funded correctly… no court.
  2. Joint Tenancy / Community Property: If your parent owned the house with a spouse or someone else as “Joint Tenants with Right of Survivorship,” the title usually passes automatically to the survivor. But this won’t protect the house from the second death or a simultaneous death. We don’t recommend this option.
  3. Transfer on Death (TOD) Deed: This is like a beneficiary designation for a house. If your parent recorded a valid TOD deed before they passed, the house can often transfer without a full probate. We also don’t recommend this route because the deed can be overturned for various reasons, like fraud allegations and it doesn’t “protect” the house from a beneficiary who might not be equipped to manage the asset outright.

Contact Vincenzo Giarratano, Vista probate attorney for guidance if you find yourself asking these probate questions.

Dealing with the San Diego Superior Court

If you do need to go to court, and the house is located in San Diego County, your case will be handled by the San Diego Superior Court, Central Division located in downtown San Diego.

The court process involves several steps:

  • Filing a Petition to start the probate.
  • Proving the Will (if there is one).
  • Having a Probate Referee to value the non-cash assets.
  • Notifying creditors.
  • Final distribution of the home to the heirs.
  • Paying the administrator or executor and any attorney involved a percentage of the estate’s value.

Why “Wait and See” is a Bad Strategy

We sometimes see families who decide to just… do nothing. They keep living in the house or let it sit vacant. But here is the problem: You can’t sell the house, you can’t refinance the mortgage, and you might even struggle to keep the homeowner’s insurance active because the “owner” is deceased.

Eventually, the title must be cleared. It is much easier (and cheaper) to plan ahead with a living trust now than to risk probate. You can read more about the risks of waiting in our post: My parents made a will, so I can give myself my inheritance, right? Wrong.

How Vincenzo Giarratano, Vista Estate Planning Attorney Can Help

If you are reading this and your parents are still with us, the best thing you can do is talk to them about a Revocable Living Trust. It is the single most effective way to keep your family out of the court system.

If you are a “planner,” you are already ahead of the game. Setting up a comprehensive Living Trust package**** ensures that your children won’t have to deal with the stress of a court case while they are grieving.

If you are already in the middle of a loss and realize you need help with a house in San Diego County, don’t feel overwhelmed. The law is complex, but it is manageable when you take it one step at a time.

Take the Next Step

Whether you need to start the probate process for a parent’s home or you want to prevent your own home from ending up in court, we are here to help. At Duisters Giarratano, APC, we specialize in making the complex simple.

Contact Vincenzo Giarratano, Vista estate planning attorney to discuss your specific situation.

Checklist for Inheriting a House in San Diego:

  • Locate the most recent deed.
  • Check if the house was in a Living Trust. If so, locate the documents.
  • Get a professional appraisal or talk to a realtor about the current market value.
  • If no trust, determine if the total estate value is above $208,850 (2026 rules).
  • If no trust, file a petition for Letters of Administration (probate) in the San Diego Superior Court.

Remember, the goal of the court is to protect everyone’s interests. While it may feel like a hurdle, it is simply the legal path to making sure that your family’s most valuable asset is safely and legally yours.

Real Life Stories: He Waited Too Long.

Real Life Stories: He Waited Too Long.

Jack was a 60-year-old fun-loving guy with many close friends. He was never married and never had children. Jack had a large extended family, but he rarely saw or heard from them. After many years of work Jack had a sizable retirement account, multi-million-dollar home with a view, and a collection of unique personal items he had collected during his lifetime. Many of his close friends would often dine at his beautiful home and talk about how much they enjoyed their friendship.

His closest friend urged Jack to contact an estate planning attorney to begin the process of planning for his legacy. Jack had a few friends he thought should receive his asset when he died. These friends were there for Jack when he needed them most. Jack didn’t take it too seriously and a few years past. Jack sadly died unexpectedly a few years later never having completed a plan.

A cousin of his opened a probate. Jack’s entire estate would pass by California law to his next of kin. 20 people came forward – first and second cousins, some of which he had never met and many of which never knew his name! These 20 “family” members all shared in $4 million. His closest friends received nothing. The process took over two years and cost his estate over $80,000 in fees.

Keeping it Simple Series: They Forgot to Transfer the House

Keeping it Simple Series: They Forgot to Transfer the House

Imagine for a moment you are a trust beneficiary. In the trust it says you are entitled to receive a house worth $1 million. That’s great! Imagine now you discover from the County Recorder records that the house was never transferred (re-titled) into the trust. Essentially this means the hosue not a trust asset and cannot be distributed through the trust. Now what? If you open a probate (the court supervised proceeding to transfer assets of a deceased person), it could cost $46,000 in fees ($23,000 to the attorney and $23,000 to the appointed administrator) and a few thousand more in costs.

There may be another way. Did the trust make clear reference that the house was part of the trust? If so, a Heggstad petition under Probate Code 850 may fix this problem. A Heggstad petition (named after the Heggstad case) would allow retroactive transfer of the house into the trust as long as the trust complied with the Statute of Frauds. In simple terms, the Statute of Frauds states a transfer of real property must be evidenced by a written document showing the intent to transfer the particular property. So, if the trust clearly stated 1235 Cedar Street, San Diego, CA was in the trust, the Heggstad petition could work.

Where would you find clear evidence the trust referenced the property? The first place to look would be “Exhibit A” to the trust, which lists all the assets that were supposed to be transferred. The second place to look is on a “general assignment.” If the Exhibit A or the Assignment lists the property with it’s address or legal description, the statute of frauds is not violated and a Heggstad could be granted.

This option would cost much less money and take much less time than opening a probate.

Keeping it Simple Series: Transferring Martial Property.

Keeping it Simple Series: Transferring Martial Property.

Here is the real-life story. Jane and John were married in 1950. They bought a home a few years later and lived in that home for their entire marriage until sadly, John passed away in 2019. Jane and John never created an estate plan, so the home was titled in their own names, but not as joint tenants. Jane thought the entire home would automatically pass into her name after John died. It would have had it been titled differently. She wanted to put the home into her new trust. Because the title did not include “right of survivorship” language, John’s half of the home did not automatically pass to Jane. Jane could not legally place the entire home into her new trust until John’s half was deemed rightfully hers under the law. What was she to do? Luckily for Jane, the California Probate Code has a remedy.

A Spousal Property Petition under Probate Code 13500 allows a court to make a summary ruling (quickly without the need for a formal probate proceeding) to transfer John’s half of the home to Jane if Jane can prove the home was community property (property of the marriage). Since John and Jane purchased the home together as husband and wife it was clear the home was community property. The court determined the home was rightfully Jane’s as a marital asset and John’s half was now in Jane’s possession. She could place the entire home into her new trust.

What’s the downside to this transaction, if any? Probate Code 13550 says any debts on that property made by John are now Jane’s responsibility. Luckily for Jane, the home was paid off and John died debt free.

Keeping it Simple Series: Revoking a Probate. The Why and How.

Keeping it Simple Series: Revoking a Probate. The Why and How.

Here is the scenario: A family member filed a petition for probate to have decedent's Will admitted to probate and administered. They were supposed to give you notice because you are an heir of the decedent, but they did not. The court admitted the Will into probate but you know the Will is invalid, now what?

Sections 8270 - 8272 of the California Probate Code deal with this situation. Under 8270, you have 120 days after the purported Will was admitted to probate to file your petition for revocation. The petition must include your objections to the Will and why probate should be revoked.

There are a few important notice rules you must comply with to successfully bring a petition to revoke probate. Under Probate Code 8271 a Summons to appear in court must be issued and served on the appointed personal representative (the Executor) and the known heirs of the decedent. The Summons (form DE-125) is issued by the clerk of the court but you are responsible for serving it properly. Service must be personal, meaning the Summons must be physically served on the party, rather than by mail. You must also serve a copy of your petition. This can be quite a daunting task if there are many living heirs.

All parties served have 30 days to file a response to your revocation petition. If they fail to respond within 30 days, they are precluded from participating, but it will not preclude them for inheriting assets of the decedent (if they are rightfully entitled).

If you can successfully prove the Will should be revoked, the court shall revoke the probate of the will under Probate Code 8272. The person appointed as Executor ceases to act and a new petition for probate can be filed in order to continue proper administration of the decedent's estate.