How Small Estate Affidavit Works in California

By Cindy DeRuyter, J.D.

How Small Estate Affidavit Works in California

By Cindy DeRuyter, J.D.

The process of settling a deceased loved one's estate is often complicated. However, in certain situations, it is possible to obtain title to assets without going through probate proceedings to settle the estate. In California, certain family members and other qualified heirs can use a small estate affidavit to administer their deceased relative's estate.

People passing each other paperwork across a desk

Who Can Use a Small Estate Affidavit

Only the deceased person's legal heir(s) or other legal representatives may use California's small estate affidavit. If your loved one named you as a beneficiary in his or her last will and testament, you can probably use the affidavit if the value of the estate is under the current threshold amount. If your loved one did not have a will but you are a family member entitled to inherit a small estate under the California Probate Code, you are a legal heir and can rely on the small estate affidavit to obtain title to assets.

In some cases, if applicable, the guardian or conservator for the deceased person's estate can also use the small estate affidavit. A California estate attorney can help you determine whether you have legal rights to access your deceased loved one's estate assets, and can advise you on whether you should go through probate court or use the small estate affidavit.

Calculating the Value of an Estate for a Small Estate Affidavit

In order to use the California small estate affidavit to transfer personal property, the assets passing through the estate must total $150,000 or less, as of March 2019.

When calculating your deceased loved one's assets to determine if you can use the small estate affidavit, do not include the following:

  • Assets owned with someone else as joint tenants with rights of survivorship
  • Life insurance passing to one or more named beneficiaries
  • Retirement accounts such as individual retirement accounts (IRAs), Roth IRAs, 401(k)s, and 403(b)s passing to one or more named beneficiaries
  • Bank or credit union accounts passing to named pay on death (POD) beneficiaries
  • Stocks, bonds, or mutual funds passing to named transfer on death (TOD) beneficiaries
  • Real estate passing to beneficiaries through a TOD deed
  • Real estate in which the deceased person had a life estate
  • Assets owned by a revocable or irrevocable trust
  • The value of cars, boats, or motor homes
  • Real estate outside of California
  • Property that passed to the deceased person's spouse
  • Unpaid salary or other compensation up to $5,000

How to Collect Property Using a Small Estate Affidavit

If you believe your loved one's estate qualifies for the affidavit process instead of probate court, follow these steps.

1. Locate and complete an affidavit form.

Some financial institutions and other providers have proprietary affidavits customers must use. Otherwise, check with the court self-help center for your county. If at least 40 days have passed since your loved one died, you can complete the form.

2. Attach additional documentation.

You need to attach a certified copy of your loved one's death certificate. If the deceased person owned real estate in California, you must also complete a form called Inventory and Appraisal (Form DE-160).

3. Collect signatures.

Everyone entitled to inherit the property or other assets you are claiming must sign the form. Many financial institutions require a notary's signature and stamp as well.

4. Provide the form to financial institutions.

Give the completed, signed affidavit along with all required additional documentation to the financial institution holding the assets you want to claim.

Obtaining title to a deceased person's assets is relatively simple and fast when the estate qualifies for the small estate affidavit process. It's important to note that if estate assets are already going through a probate proceeding, the personal representative must authorize the use of the small estate affidavit in writing.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.