In California, a document called a small estate affidavit may be used to transfer an estate’s assets to the proper beneficiaries without having to open a formal probate proceeding with the court. To use a small estate affidavit, the estate must meet the following basic legal requirements:
The basic requirements to use a small estate affidavit are the estate’s probate assets must not exceed $184,500.00 in value. The decedent’s personal and real property are included in the value of the estate although small estate affidavits are generally used to transfer real property such as bank accounts, stocks, and mutual funds to the decedent’s heirs.
The value of the estate includes all real (ex. bank accounts and financial assets in the name of the decedent) and personal property (for example furniture, jewelry, household items owned by the decedent) and all life insurance or retirement benefits that will be paid to the estate (but not any insurance or retirement benefits with a named beneficiary).
The value of the estate DOES NOT include cars, boats or mobile homes owned by the decedent; real property outside of California; property held in trust, including a living trust; real or personal property that the decedent jointly owned with someone else; “pay on death” property that passed directly to the surviving spouse or domestic partner at the decedent’s death; life insurance, death benefits or other assets not subject to probate that pass directly to the beneficiaries; unpaid salary of the decedent up to $5,000; and the debts or mortgages of the person who died.
A small estate affidavit may only be used if:
- The affidavit is submitted by an heir of the decedent, guardian of the decedent’s estate, or executor named in the decedent’s will;
- At least 40 days must have passed from the decedent’s date of death before a small estate affidavit can be used;
- A small estate affidavit cannot be used if there are pending probate proceedings for the estate (meaning someone has filed a petition with the probate court in the California county where the decedent lived or owned property); and
The form and contents of the affidavit must conform to the requirements set forth in Section 13101 of the California Probate Code. Note that many financial institutions such as banks and brokerage companies have their own small estate affidavit forms, often available online.
After the form is completed and signed as required under the California Probate Code, present it to the bank or holder of the property along with a certified copy of the decedent’s death certificate and any other requested documents in exchange for the property. Small estate affidavits may also be used to transfer title to cars owned by the decedent by filing the affidavit with the California Secretary of State.
Estates with Both Real and Personal Property
Small estate affidavits are typically used to transfer the decedent’s personal property. In order to use a small estate affidavit for an estate that also includes real property, California law requires an inventory and appraisal of the real property to be attached to the affidavit. The California State Controller’s Office maintains a list of accepted appraisers.
Why Not Probate?
Under California law, formal probate proceedings can be opened for any estate regardless of its value. Although using a small estate affidavit is typically less expensive and time consuming than formal probate, circumstances may dictate that a supervised administration of the estate by the probate court is needed. Such circumstances include an estate likely to involve a contentious dispute among beneficiaries or an estate that must deal with creditor claims or assets held by foreign institutions. Further, since assets held in a trust avoid probate, small estate affidavits are often used to transfer “stray” assets not titled in the name of a decedent’s trust such as small checking and savings accounts.
Do I Need A Lawyer If I Use A Small Estate Affidavit?
Our office has experience with small estate affidavits and can help expedite the transfer process. You may be able to transfer the decedent’s assets without a lawyer so long as you are an heir of the decedent or the executor or guardian of the decedent’s estate, the estate qualified for a small estate affidavit, and the estate contains simple financial assets held at institutions used to using small estate affidavits. However, an attorney’s help may be necessary to determine whether or not the estate requires probate or to deal with unique assets or uncooperative financial institutions.