The monetary size of a decedent's estate, what it is composed of, and the marital status of the person who died, are all key components that help determine whether probate will be necessary. Avoiding the administration of a deceased's will is clearly the preferred way to settle an estate, if possible.

Recognizing that probate proceedings can be frustrating, expensive, and time consuming, California's legislators developed a procedure so that a beneficiary can settle a small estate without all of the formal probate complexities. In fact, the procedure established via California Probate Code 13050, makes filing a small state affidavit must faster than going through full probate proceedings, and relatively easy.

What Qualifies as a Small Estate?

According to the California probate code §§890, 13000 - to be considered a small estate and avoid probate, the total value of all real property and personal property cannot exceed $184,500.

In determining if the decedent's estate qualifies, you'll need to calculate the total value of all property they owned, and add any life insurance and retirement benefits that will be paid to the estate. The total value of the decedent's property is calculated based on its worth on the date of death. It is not based on what is property's current value may be, as several months or perhaps years may have passed since the death occurred.

If a small estate includes real property (ex: real estate, including a house, condominium, townhouse, or land), California's limit where you can still utilize the small estate affidavit to transfer said property is $61,500, for deaths taking place after April 1, 2022. This is part of the total of $184,500 that is permissible to avoid probate.

This does not include monies that are designated as payable to someone other than the deceased.

The California Judicial Branch specifies that the following items are not to be included when calculating the total value of the estate:

• Automobiles, boats, motorhomes, camper trucks, or mobile homes.
• Real property, including real estate, located in states other than California.
• Real property that is considered held in trust, including a living trust.
• Any joint tenancy property. This is real property or personal property that the decedent owned with someone else. This may include a spouse, domestic partner, friend, or business partner.
• Property of the deceased's that will pass directly to a surviving spouse or domestic partner. Included is any community property which was acquired during the marriage unless otherwise noted; quasi-community property (California Family Code, section 125) that was purchased outside of California, but would be considered community property if the items were purchased elsewhere, prior to a married couple moving to the state.
• Separate property, which according to California Family Code, section 770, can include personal property acquired before marriage, gifts or inheritance obtained before or during a marriage, income earned from separate property, and any assets or debts that are determined to be a spouse's responsibility by the other spouse.

Also not included in a small estate total valuation calculation are life insurance policies and death benefits, items subject to probate that are passing directly to one or more beneficiaries; salary or compensation payable to the decedent of up to $5,000, debts or property mortgages of the decedent, and bank accounts owned by multiple persons, including the deceased.

Because of the required exclusion of many potentially valuable assets from small estate filings, a surprising number of estates which might have been above the $184,500 threshold for large estates, now qualify to make use of the small estate's procedure.

Do You Qualify to Use the Small Estate Procedure?

So you've determined that the estate of the decedent qualifies as a small estate under California law, with a total valuation under $184,500. Let's see if you are entitled to file the small estate affidavit. Here are the parameters, again based on the rules of the California Family Code, section 770.

• You can file a sworn document known as an Affidavit for Collection of Personal Property if you have a legal right to claim an inheritance from the decedent. You may be named as a beneficiary in the deceased's will or may be the guardian or conservator of the estate if there are minor children left behind.
• If the decedent did not leave a will, known as passing away 'intestate', you may file a small estate affidavit if you are the spouse or child of the deceased; or if none exists, a relative. The inheritance succession is spelled out by the California Intestacy Code, sections 6400-6414.
• If the estate of the deceased person is already in probate court when you begin your small estate procedure, the estate's personal administrator must agree, in writing, that you may continue with your action.

Most banks, credit unions and other financial institutions have their own affidavit available for the transfer of personal property, or you may choose to use of the form available from the county probate court.

California's Small Estate Affidavit Procedure

If the deceased died after April 1, 2022, and the total value of the estate is less than $184,500, you may utilize the small estate affidavit to claim all property, except real estate. To account for inflation, the value of a small estate is adjusted every three years.

NOTE: **There is a 40-day waiting period following the time of death before this simplified procedure can be initiated with the court.

Assuming that both the estate and personal qualifications have been met, you are ready to proceed with the small estate affidavit procedure. Be sure to obtain and complete the form required by the probate court in the county where the deceased had his or her primary residence.

Both a hard copy of the form which you can pick up in person at the court or a downloaded form from the county's online self-help center is permissible to use.

Closely follow the instructions provided with the form while completing the affidavit procedure, and be sure to include all required attachments to the affidavit.

Here's what's needed to file a "small estate affidavit" or "affidavit for collection of personal property":

• A certified copy of the decedent's death certificate, as well as proof that the decedent owned the property (bank statements, stock certificates, etc.) you are listing in the affidavit.
• Proof of your identity in the form of a driver's license, passport, or other ID accepted by the State of California.
• California Probate Form DE-160/Inventory and Appraisal, listing all real property owned by the deceased, but only in California. Real property owned in other states is not part of this probate proceeding. This completed form needs to be signed by a court recognized probate referee before attaching it to the affidavit. You'll need to contact the court in the decedent's county of residence at the time of death to ask how this is done locally. (note: some small estates that don't have real property involved will not require the filing of this form.)
• If there is anyone else legally entitled to receive an inheritance from the deceased, you must also have them sign the affidavit. They must agree to your receiving all of the property listed in the DE-160 that you are claiming as yours. You may also choose to file a partial list of real property initially, and a final list at a later date, if you have outstanding appraisals for specific items, but desire to get the affidavit filed with the court when certain inventoried property has been fully appraised.
• While notarization of the form is not required by the State of California, to get the decedent's property transferred, financial institutions involved in this probate process will stipulate that the form be notarized. In other words, you'll need to get the DE-160 notarized.
• Finally, it's time for the transfer of property. Again, you must wait for 40 days after the date of passing on the death certificate to present the affidavit and attachments to the parties that have physical access to the property that you are planning to have transferred into your possession.

When filing the small estate affidavit:

• Once you've completed all of the requirements needed to file an affidavit for collection of personal property, it's important that you must file the affidavit in the probate court the deceased resided. You can use the court locator to find the correct probate court.
• Upon filing the affidavit with the appropriate court, there is a $435 filing fee.

When the financial institution or person that is holding the deceased's property is presented with both the affidavit and a copy of the decedent's death certificate, it is required to release the asset to the new owner.

While the procedure detailed above may appear somewhat cumbersome, it is pretty simple and straightforward. The small estate affidavit process is far and away the best way to avoid full probate, which can easily take six months or even longer to complete.

Are You the Surviving Spouse or Domestic Partner?

Another way to potentially bypass full probate proceedings is by using a Spousal or Domestic Partner Property Petition, California form DE-221. This simple form requests a court order to determine what is your share of the community property as the surviving spouse or domestic partner of the decedent, as well as what is your share of community and separate property from your relationship.

Should the surviving spouse/domestic partner be legally entitled to 100% of the property in question, a complicated and drawn out probate procedure may be avoided. Couples who were together long-term, for example, may have only community property, which would transfer directly to the surviving spouse/domestic partner, if confirmed by the court.

Need help with filing the small estate affidavit?

If you're an estate administrator in the unfortunate situation of settling a small estate, we hope this article has been helpful. We want to remind our readers that we are here to help with any questions or concerns they may have about the process. If you need assistance with filing a small estate affidavit, ClearEstate is here to help make a difficult time a little bit easier for you. Contact us today.