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Handling a Small Estate After the Death of a Loved One

probateStarting in 2012, estates of decedents that do not exceed $150,000 do not need to be probated in California. An affidavit or declaration signed under penalty of perjury at least 40 days after the death can be used to collect the assets for the beneficiaries or heirs of the estate. No documents are required to be filed with the Superior Court if the small estates law (California Probate Code Sections 13100 to 13116) is used.

In these circumstances, personal property may be transferred to the decedent’s successors without a formal probate. If the decedent’s estate qualifies under California Probate Code §§ 13100-13116, the person(s) entitled to the property may present an Affidavit for Collection of Personal Property, also known as a Small Estate Affidavit, to the person or institution having custody of the property, requesting that the property be delivered or transferred to the successor.

Personal property refers anything that isn’t real estate. Common types of personal property include furniture, jewelry, and household goods, as well as bank accounts, stocks, and money due to the decedent.  The procedures described in this guide apply only to personal property. Real estate with a value under $150,000 may also be transferred without a formal probate, using different forms.

Personal property may be collected using an Affidavit for Collection of Personal Property if:

  • At least 40 days have elapsed since the death of the decedent
  • No administrative proceedings are pending or have been conducted for the decedent’s estate
  • Estate does not exceed $150,000 in value. Many types of property are excluded when calculating the value of the estate (see Probate Code § 13050 for exclusions)

Although the Probate Code states that a declaration under penalty of perjury is sufficient, many institutions require a notarized affidavit, especially when securities are involved. Contact the institution to determine if notarization is necessary.

If there are several assets to be transferred, they may all be included on one affidavit, or a separate affidavit may be used for each. If more than one person is entitled to inherit a particular asset, all beneficiaries must sign a single affidavit.

The Affidavit for Collection of Personal Property must be accompanied by:

  • A certified copy of the death certificate
  • Evidence that the decedent owned the property  (e.g., stock certificate, bank passbook, storage receipt)
  • Reasonable proof of the identity of the person(s) signing the affidavit (e.g., driver’s license, passport)
  • An Inventory and Appraisal of all real property owned by the decedent in California, if any. This appraisal must be performed by an approved probate referee. The court can provide you a list of approved referees.

If stocks or bonds are being transferred, you will also need to attach:

  • An Affidavit of Domicile signed by the person(s) entitled to the securities
  • A Transmittal Letter signed by the person(s) entitled to the securities
  • A Stock or Bond Power, signed by the person(s) entitled to the securities

What assets are included in the $150,000 limit? Bank accounts, brokerage accounts, stock, bonds, mutual funds, other investments, real property valued at up to $50,000, and similar assets that the decedent owned in his or her name only, except for the following:

1. Joint tenancy assets.
2. Trust assets.
3. IRAs, 401K accounts, and similar pension accounts.
4. Life insurance.
5. Death benefits.
6. Registered vehicles.
7. Pay from service with the armed forces.
8. Salary from any source not paid before date of death up to $15,000.
9. Pay on death (POD) accounts.
10. Accounts with a named beneficiary.

When is the value of the assets determined? At the date of death, even if the affidavit or declaration is signed years later.

When can the small estates law be used? When at least 40 days have elapsed since the date of death. The affidavit or declaration cannot be signed before the 40-day period ends. The new limit of $150,000 applies to all estates, regardless when the decedent died, provided the affidavit was signed after Jan. 1, 2012.

Who can use the small estates law? Beneficiaries and heirs of the estate, trustees of the decedent’s trust, and fiduciaries, among others.

What has to be done to collect the assets? An affidavit or declaration must be signed under penalty of perjury. The affidavit or declaration must include the information described in California Probate Code section 13101. The affidavit or declaration is then given to the institution that holds the assets, and the assets are transferred to the person who signed the affidavit or declaration. Creditors of the decedent are paid from the assets, and the remaining assets are transferred to the beneficiaries or heirs.

When should the small estates law not be used? This law should not be used for estates with substantial indebtedness that might exceed the value of the assets. Estates that are insolvent or close to insolvency should be probated instead to take advantage of Probate Code provisions that determine which creditors will be paid from the estate, and how much. Probate should also be used in situations in which the beneficiaries or heirs do not agree on how the assets should be distributed.

Real property. Although Probate Code section 13200 allows real property valued up to $50,000 to be transferred with a small estates affidavit, title companies might be reluctant to accept the affidavit when determining whether to issue title insurance. A probate might be necessary to avoid this problem.