How Small Estate Affidavit Works in California

By Joe Stone

California probate law provides a simplified procedure for settling an estate with limited assets, referred to as a "small estate." In an appropriate situation, you can use a small estate affidavit 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 to settle an estate, the estate must meet certain legal requirements regarding the maximum value of the estate's assets and the type of property to be transferred.

Basic Requirements to Use Small Estate Affidavit

As of January of 2012, an estate with assets valued at $150,000 or less, excluding certain types of assets, is considered a small estate under California law. In determining the estate’s value, both the decedent’s personal and real property is included; however, the small estate affidavit can only be used to transfer personal property to a beneficiary, not real property. The type of property transferred using a small estate affidavit typically includes bank accounts, stocks, mutual funds and other financial investments.

Using a Small Estate Affidavit

California law requires at least 40 days to elapse from the date of the decedent's death and no pending probate proceedings for the estate before you can use a small estate affidavit to acquire an estate asset to which you are entitled. The contents of the affidavit must conform to the requirements set forth in California Probate Code Section 13101. Oftentimes, a blank small estate affidavit form can be obtained from a law library, courthouse or online legal document provider. Additionally, financial institutions may require you to use their small estate affidavit form to gain access to accounts at their institution. After completing the small estate affidavit, provide it to the holder of the property, such as a bank, along with a certified copy of the death certificate and any other requested documents in exchange for the property.

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Estates with Both Real and 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. You obtain the required inventory and appraisal by using the services of a probate referee appointed by the California State Controller's Office. The affidavit with the attached inventory and appraisal is then used to acquire the personal property.

Affidavit Procedure Is Optional

Using a small estate affidavit is optional. 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 disputed creditor claims.

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How to Settle a Small Estate in California


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Must All Wills Be Probated?

Whether or not a will must be probated depends on the laws of the state where the deceased resided at death. Some states, but not all, have procedures designed to provide for the acquisition and distribution of estate assets without the need to probate the will through formal court proceedings. The requirements for these procedures vary among the states that allow it. In general, the availability of the procedure depends on the value and type of property in the estate.

Why Does a Probate Require an Appraisal on the Decedent's Property Upon Death?

A probate case requires the decedent's property to be appraised, in order to determine the cash value of the property as of the date of the decedent's death. The probate court needs to know the total cash value of the estate, prior to distribution of the assets. Probate cases primarily depend on professional appraisals to determine the cash value for "non-cash" assets, such as real estate. The term appraisal generally implies a professional appraisal by an appraiser familiar with the type of property and its value in the given industry. Probate cases do not often require professional appraisals for "cash" assets, such as bank accounts, with easily determined cash values.

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The death of a trustee under a living trust means the successor trustee, also named in the living trust, assumes the trustee’s duties. Since the trustee holds legal title to trust property, the property is held in the trustee's name. As a result, the successor trustee must prepare the necessary documents to change title to the trust property.


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