Posts tagged small estate affidavit
What is a Small Estate Affidavit?

The California probate process is expensive and time-consuming. It also involves documents to be filed with the Court, which are public. As a result, revocable living trusts are generally considered the most ideal estate planning tool rather than solely a Will, which is always subject to probate.

That being said, even where only a Will is used, there may be some instances where the probate process may be avoided. Generally, speaking, these methods are usually employed by heirs or beneficiaries of people who have relatively little wealth. In other words, if you have a substantial amount of assets, you, your family, and your beneficiaries will most likely be better off, from an economic perspective, setting up a revocable living trust.

Small Estate Affidavit

If your real property and personal property does not exceed $150,000, then your beneficiaries or heirs may utilize a "Small Estate Affidavit" to collect your assets after you pass away. California Probate Code Section 13100 provides the relevant law:

Excluding the property described in Section 13050, if the gross value of the decedent’s real and personal property in this state does not exceed one hundred fifty thousand dollars ($150,000) and if 40 days have elapsed since the death of the decedent, the successor of the decedent may, without procuring letters of administration or awaiting probate of the will, do any of the following with respect to one or more particular items of property:

(a) Collect any particular item of property that is money due the decedent.

(b) Receive any particular item of property that is tangible personal property of the decedent.

(c) Have any particular item of property that is evidence of a debt, obligation, interest, right, security, or chose in action belonging to the decedent transferred, whether or not secured by a lien on real property.

It's important to realize that your beneficiaries or heirs must first wait 40 days after you death. In addition, this process cannot be used to transfer your real estate (even though the value of your real estate is used in determining whether you may avail yourself of the Small Estate Affidavit procedure). 

People occasionally have questions about what is included in the $150,000 calculation. First of all, it does not include real or personal property outside the state of California. California Probate Code Sections 13050 and 13500 provide some exclusions:

California Probate Code Section 13050:

(a) For the purposes of this part:

(1) Any property or interest or lien thereon which, at the time of the decedent’s death, was held by the decedent as a joint tenant, or in which the decedent had a life or other interest terminable upon the decedent’s death, or which was held by the decedent and passed to the decedent’s surviving spouse pursuant to Section 13500, shall be excluded in determining the property or estate of the decedent or its value. This excluded property shall include, but not be limited to, property in a trust revocable by the decedent during his or her lifetime.

(2) A multiple-party account to which the decedent was a party at the time of the decedent’s death shall be excluded in determining the property or estate of the decedent or its value, whether or not all or a portion of the sums on deposit are community property, to the extent that the sums on deposit belong after the death of the decedent to a surviving party, P.O.D. payee, or beneficiary. For the purposes of this paragraph, the terms “multiple-party account,” “party,” “P.O.D. payee,” and “beneficiary” are defined in Article 2 (commencing with Section 5120) of Chapter 1 of Part 2 of Division 5.

(b) For the purposes of this part, all of the following property shall be excluded in determining the property or estate of the decedent or its value:

(1) Any vehicle registered under Division 3 (commencing with Section 4000) of the Vehicle Code or titled under Division 16.5 (commencing with Section 38000) of the Vehicle Code.

(2) Any vessel numbered under Division 3.5 (commencing with Section 9840) of the Vehicle Code.

(3) Any manufactured home, mobilehome, commercial coach, truck camper, or floating home registered under Part 2 (commencing with Section 18000) of Division 13 of the Health and Safety Code.

(c) For the purposes of this part, the value of the following property shall be excluded in determining the value of the decedent’s property in this state:

(1) Any amounts due to the decedent for services in the Armed Forces of the United States.

(2) The amount, not exceeding fifteen thousand dollars ($15,000), of salary or other compensation, including compensation for unused vacation, owing to the decedent for personal services from any employment.

California Probate Code Section 13500:

Except as provided in this chapter, when a spouse dies intestate leaving property that passes to the surviving spouse under Section 6401, or dies testate and by his or her will devises all or a part of his or her property to the surviving spouse, the property passes to the survivor subject to the provisions of Chapter 2 (commencing with Section 13540) and Chapter 3 (commencing with Section 13550), and no administration is necessary.

The Small Estate Affidavit procedure can be very useful for collecting smaller assets, such as lingering bank accounts that a person forgot to re-title in the name of his or her trust. Often, the successor Trustee of the deceased person's trust will rely on this to collect assets that are rightfully considered part of the trust estate for ultimate distribution to the trust beneficiaries.