Probate is the often time-consuming and emotionally draining process of formally dissolving a deceased person’s estate. Under most circumstances, probate can only be avoided if the deceased person, or decedent, established a revocable living trust or took other estate planning measures designed to negate the need for probate. However, California law allows many families to side-step probate’s most rigorous formalities by obtaining and executing a small estate affidavit—a special document available only to certain, lower-value estates. Small estate affidavit  | California Estate Planning Lawyer

Who Qualifies for a Small Estate Affidavit

An affidavit for collection of personal property, or small estate affidavit, allows the beneficiaries of a California estate to claim the decedent’s assets without the need to initiate and administer formal probate.

However, small estate affidavits may only be obtained if the estate is worth less than $166,250. When assessing the overall value of an estate, only certain assets are considered. These assets include:

  • Real properties, such as a home
  • Personal assets, such as a bank account or investment portfolio
  • Bank accounts
  • Brokerage accounts
  • Life insurance policies
  • Retirement benefits with beneficiary clauses

Other assets, such as motor vehicles, boats, and community property, are not considered in the estate’s valuation.

Beyond the Golden State’s financial limitations, a small estate affidavit is largely contingent on the heirs’ agreement. For the court to authorize a small estate succession, the estate’s beneficiaries must all provide their consent. If any prospective heir refuses to consent to small estate proceedings, the estate must be administered in and by the probate court.

How to File a Small Estate Affidavit

A small estate affidavit must be prepared before probate begins. If you, or the estate executor, believe the estate is worth less than $166,250, you may obtain and file a small estate affidavit provided that at least 40 days have passed since the deceased person’s death and no other probate case has been initiated.

Creating a Small Estate Affidavit

Obtain the required paperwork.

Contact an estate planning attorney to obtain a small estate affidavit.

Gather documents.

Collect the required documents needed to legitimize the affidavit, including proof of your own identity, a certified copy of the decedent’s death certificate, and proof of the decedent’s ownership of the assets you intend to collect. If the deceased person left any real estate, you must complete Form DE-160, which should be signed by the probate referee.

Notarize the affidavit.

While California law does not mandate that small estate affidavits be notarized, many financial institutions will not approve small estate transactions without a notary stamp.

The Advantages and Risks of Using a Small Estate Affidavit

Small estate affidavits are meant to simplify probate for lower-value estates. Consequently, small estate affidavits could help heirs, beneficiaries, and executors save money while administering and dissolving an estate.

However, small estate successions are not always simple. When submitting a small estate affidavit to the court, you may be required to:

  • Assess and appraise the estate
  • Resolve disagreements between other heirs and beneficiaries
  • Proactively contact financial institutions that may be reluctant to transfer the decedent’s assets outside of probate
  • Pay the estate’s creditors, if any creditors have an interest in either the estate or the particular assets you intend to claim

Depending on the circumstances of your California probate case, you may need an attorney’s assistance to determine whether the estate even qualifies for an informal succession.

Do You Need To Speak With An Experienced Probate Lawyer?

If you need to speak with an experienced probate attorney please contact us online or call us directly at 800.756.5596 to first register for one of our free, informative seminars. Your attendance will qualify you for a special discount for our estate planning services should you decide to make a free appointment at the conclusion of the seminar and choose to proceed with us. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.

 

Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.