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.

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.

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.

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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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Illinois Small Estate Affidavit and the Law

References

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Florida Laws on Estate Disbursement

The Florida Probate Code is a compilation of laws that sets forth how a person's estate is to be disbursed after death. The estate is all property a decedent owns. Some property is disbursed to beneficiaries in accordance with state law. The decedent can dispose of the rest of his property as he wishes by making a will. Without a will, an estate passes according to Florida's intestacy laws.

Louisiana Ancillary Probate Laws

Probate is the process by which property owned by a deceased person is distributed according to a will. If you are not a resident of Louisiana, but own property in the state at the time of death, a separate probate action, known as ancillary probate, will be required. Understanding and following the unique rules applicable to Louisiana will help ensure that unnecessary delays are avoided in the probate process.

Oregon Small Estate Laws

If a person in Oregon dies and leaves behind an estate that qualifies as "small" under state law, his beneficiaries and heirs may not have to start full probate court proceedings to settle the estate. Oregon has two types of affidavits, which are sworn statements, for small estates: the testate affidavit and the intestate affidavit. The testate affidavit is used if the deceased left a will. If he didn't leave a will, the intestate affidavit is used. The affidavit filer must wait until 30 days after the deceased's death before filing the affidavit in probate court. She may file the affidavit in the probate court in the county where the deceased died or where he lived or owned real estate. The filer must submit the original will with the testate affidavit. Oregon law requires a certified copy of the death certificate for both affidavit types.

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