Small Estate Affidavit of Probate in California & Louisiana

By Wayne Thomas

Probate is a court-supervised process involving the collecting, inventorying and distributing of assets by an administrator or executor following the death of a person. The process is often time consuming, and it can take several months for inheritances to be distributed. For this reason, both California and Louisiana offer a quicker alternative for relatively small estates. Although the requirements differ between the two states, the result is the same and authorizes property transfers to heirs through a signed affidavit, effectively avoiding probate.

Probate is a court-supervised process involving the collecting, inventorying and distributing of assets by an administrator or executor following the death of a person. The process is often time consuming, and it can take several months for inheritances to be distributed. For this reason, both California and Louisiana offer a quicker alternative for relatively small estates. Although the requirements differ between the two states, the result is the same and authorizes property transfers to heirs through a signed affidavit, effectively avoiding probate.

Small Estates in California

To be eligible for small estate administration in California, the deceased must have left only personal property and no real estate. However, real estate does not include property co-owned with another person as joint tenants. The total value of the personal property must not be in excess of $150,000, subject to certain exclusions. Provided that the estate qualifies, an heir by law or a beneficiary under a will may complete an Affidavit for Collection of Personal Property and sign the document in the presence of a notary. By law, the affidavit cannot be executed until at least 40 days have passed since the person's death.

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Exclusions

In calculating total personal property value, California law provides for certain exclusions. These exclusions include the value of locally titled automobiles, boats, mobile homes, as well as armed services pensions, and up to $15,000 in earned employment income payable to the estate. In addition, assets that are considered non-probate items are not included in this calculation in either California or Louisiana. These items include payable on death bank accounts, property held in a revocable trust, life insurance contracts and multiple party bank accounts.

Effect of Will in Louisiana

Louisiana has notable differences in the eligibility requirements for small estate administration in comparison to California. One area of contrast is in regards to the effect of a will. If the deceased person lived in Louisiana at the time of death, he must have died intestate, meaning that no valid will was present for the estate to be eligible. However, if the deceased person died while living in another state, the presence of a will is not a bar to small estate administration, provided it was probated in that state. This differs from the small estate procedure in California, which is not affected by the presence of a will.

Nature of Estate

In contrast to California, the estate can include both personal property and real estate in Louisiana, but the value must not exceed $75,000. Provided the estate qualifies, an heir may complete an Affidavit of Small Succession, which must be signed and notarized by the surviving spouse and at least one adult heir. If there is no surviving spouse, it must be signed by at least two adult heirs. If there is only one heir, the affidavit must be signed by someone with knowledge of the facts contained in the document. The form must be submitted to the Department of Revenue along with an inventory of all of the assets and be approved.

Presenting the Affidavit

Once the affidavit has been notarized and approval has been granted, if required, an heir or beneficiary may present the affidavit to the person or institution in current possession of the property, such as a bank, and request transfer of ownership. However, certain state departmental rules come into play that may require you to file additional documents. For example, in California, if you are seeking to transfer ownership of an automobile or boat, the Department of Motor Vehicles requires a specific affidavit completed for that purpose. Further, although a small estate affidavit authorizes the transfer, it does not require that the holder comply. Transfer agents for stock often refuse to act in the absence of an order from a judge. Should this happen, you would need to petition the court to compel compliance.

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References

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What to Expect in Tennessee Probate Court

When someone passes away owning property in Tennessee, the probate court is charged with supervising administration of the estate. The depth of the court's involvement will depend on the amount and type of property in the estate, and whether there are any objections raised by those who may inherit under a will or by intestacy laws. The process is highly legal in nature, and for all estates valued at over $25,000, Tennessee requires an attorney to open the probate process and to represent the person appointed to administer the estate. Estates valued at less than that amount and having no real property can take advantage of a streamlined procedure known as a small estate probate.

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California law does not require you to use the probate court when the decedent's estate is $150,000 or less in value and hence classified as a "small estate." You can use a simplified procedure to transfer the estate property to the beneficiaries without a court order. However, in order to use this procedure for real property, such as a home or vacant lot, the real property must be valued at $50,000 or less.

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There are often complaints about the expense and length of time the probate process takes. Given this is an emotional time for a decedent's heirs and beneficiaries, states have developed ways to fast-track smaller estates through the system. The State of Florida has a few methods that simplify the traditional probate process for such estates.

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