Where can i get a small estate affidavit in california

Probate administration is the process in which upon the probate court determines who receives a decedent’s assets. Smaller estates, or estates that have probate assets that are less than $166,250, can have their assets passed along to the intended beneficiaries or rightful heirs without going through the formal probate administration process. This process can be accomplished through an affidavit known as a Small Estate Affidavit presented by the heir or beneficiary.

What Qualifies as A Small Estate?

For an estate to qualify as a small estate under California law, the value of the property contained within the estate must not exceed $166,250. This value is calculated by totaling the value of all property, including household items, money in bank account, stocks, money that the decedent is owed, and life insurance and retirement benefits that are payable to the estate.

What Is Excluded from the Valuation of a Small Estate?

All property that would not be subject to the formal probate administration process is excluded when assessing the value of a small estate. This includes assets which are held in joint tenancy, assets that are transferable directly to a surviving spouse at one’s death, property held by the decedent in a revocable living trust, real property outside of California, debts and mortgages, banks accounts that were not solely held by the decedent, life insurance policies and death benefits that are payable directly to a beneficiary other than the estate, and registered vehicles.

A Small Estate Affidavit

An affidavit is used to facilitate the transfer of all of the assets of an estate which qualify as a small estate to the intended beneficiary or rightful heir upon the death of a loved one except for real property and registered automobiles. After a decedent’s death, the person with a legal right to inherit the property must fill out the affidavit and present it to the holder of the property, like a financial institution. Furthermore, one must either be the beneficiary to the will or the rightful heir if there is no will. The Small Estate Affidavit form can be downloaded by clicking here.

The beneficiary or heir is entitled to receive the property upon presenting the affidavit to the person holding the property 41 days or more after the decedent’s death. A copy of the decedent’s death certificate, proof of the beneficiary/heir’s identity, and proof that the property in fact belonged to the decedent must also be presented in order to gain ownership. Further, the property holder can be compelled by the court to turn over the property if he or she refuses to do so.

If you are legally entitled to inherit property and need professional help, contact our estate attorneys for further information.

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Small Estate Affidavit in California

UPDATE AS OF APRIL 1, 2020 – THE LIMIT IS NOW $184,500 OR LESS. SUBSTITUTE $184,500 INSTEAD OF $166,250 or $150,000 IN THIS ARTICLE

A very common non-probate transfer is the use of affidavits to transfer personal property not exceeding $150,000 in value. This is a cumulative $150,000 of qualifying assets even if at different financial institutions. Similar to the above you must wait 40 days after death before you can use this procedure. The valuation date is not the date of death but rather the date of the affidavit signing. Though some financial institutions have their own forms most use attorney drafted forms that contain all the elements required by the California probate code. The form is generally notarized. This only works for personal property and does not work for real estate.

We have flat fee arrangements available in most small estate cases.

Unlike the other mini probate options there is no appraisal required. Also, no bond is required. There is no publication. The Court does not issue Letters. In fact, California Probate Code 13100 generally has absolutely no Court involvement whatsoever and is not filed in Court… unless someone commits fraud or in some other rare situations. It is simply a signed affidavit, under the penalty of perjury, declaring a number of items required by the probate code. This contributes to fraud (and/or mistaken use) that does happen with 13100 declarations. It’s thus important to work with a qualified probate attorney to make sure you do not accidentally commit fraud.

A 13100 declaration will provide:

1. That 40 days have elapsed since death;
2. Total California estate is $150,000 or less currently;
3. No proceeding is now being conducted in California for administration of the estate;
4. Description of property (i.e. “Wells Fargo Bank account #123456);
5. Names of successor in interest;
6. No other person has a superior right;
7. Attach death certificate;

What to Know About a Small Estate Affidavit

The holder of property is specifically not liable for paying the money out pursuant to this section (PC 13106) which allows financial institutions to pay the money out without a huge ordeal generally. Also, a 13100 declaration can often be used to get the items out of a safe deposit box.

Though fraud happens the probate code specifically provides for treble damages for fraudulent use. (PC 13110) This is a great California probate code section if you feel someone else has used probate code 13100 to wrongfully take property that should have gone to you. Treble damages mean TRIPLE! Thus, if a person wrongfully took $30,000 we could potentially recover $90,000 in a lawsuit against that person!

A person who uses a 13100 declaration, and receives property, has personal liability up to extent of value they received. The liability cap is based on fair market value at date of death. In rare cases this can cause the recipient a problem! (PC 13109).

As indicated above, some financial institutions have their own small estate forms which they ask you to use. Additionally, some institutions require an affidavit of domicile also as well as a W-9 showing the recipient’s social security number. To avoid delays it’s not a bad idea to supply affidavit of domiciles and W-9s with the small estate affidavit form. Your California probate attorney can prepare these for you.

A key point with using PC 13100 small estate affidavits is that not all assets count toward the $150,000. PC 13050 specifically excludes a few items from the calculation:

1. Joint Tenancy
2. Spousal Property
3. Property in Trust
4. POD Accounts
5. Vehicles, boats, mobile homes/RVs (Go to the California DMV website for forms)
6. Moneys from service in Armed Forces
7. Up to $5,000 in salary/compensation from employment

Speaking of trusts 13100 small estate affidavits can be used by the trustee, that is the residuary beneficiary of a pour over will, to claim assets that are not in the trust.

Attorney fees are by agreement of the parties. There are no fees for the PR when using this code section.

All the information required on California Probate Process are here.

Does California have a small estate affidavit?

How much is the small estate affidavit in California?

What qualifies as a small estate in California?

Can you settle an estate without probate in California?