Heir Rights (CA)

Legal team for heir

As an heir, you likely have questions about the inheritance process, and your rights.

Overall, if you are entitled to receive an inheritance, you have the right to expect to receive that inheritance ... eventually. While some states attempt to put deadlines on estate settlements, an average estate takes 16 months to settle, and some take years (see Inheritance Timing).

Rights Under Probate

Most estates are settled by an executor appointed by the court (often a family member), under a court-supervised process known as probate. The executor has significant discretionary power, but he or she has a fiduciary duty to act in the best interests of the estate, to follow the law, and to distribute estate proceeds to the rightful heirs.

However, estates must satisfy obligations according to priority (for example, debts take precedence over distributions), so in some cases your inheritance will be less than expected, or even be completely consumed by other estate priorities (which must generally affect all potential heirs proportionately). See Estate Expenses, Fees, and Taxes for more information, and note that for your protection, estate executors must document all estate transactions and make these records available to the courts ... and in some states, must proactively deliver these records in a Final Accounting to the heirs as well.

Your rights as an heir include:

  • Notice: Many states have laws that require an estate executor to notify you of the death and the estate proceeding if you are mentioned in the will, if there is no will and you are entitled to inherit by intestate succession, or even if there is a will that doesn't mention you, but you would have been entitled to inherit by intestate succession (i.e., you are an "heir-at-law").
  • Estate Information: Many states require the executor to provide you a copy of the estate inventory, as well as a Final Accounting (what happened to the inventory, what estate expenses were incurred, etc.). If the estate is undergoing probate, and the state does not require that the executor directly supply you the information, you can simply make a public records request for the reports filed with the court.
  • Family Entitlements: If you are a surviving spouse or dependent child, you likely have additional rights that go beyond anything mentioned in the will or mandated by the laws of intestate succession. Surviving family members often have the right to remain living in the family home for a certain period of time, to automatically receive certain personal possessions, to receive a living allowance from the estate while it is being settled, and to receive certain minimum amounts (see Family Entitlement details for your state).
  • Reasonable Timeframe: Unless the asset is one that automatically transfers on death (such as an IRA with a named beneficiary), you can expect the process to take 12-18 months on average, and sometimes considerably longer (see Inheritance Timing). An executor has a duty to settle an estate in a reasonable timeframe, but most states are very lenient about such timeframes, and there are legitimate reasons that some estates take years to settle. On the other hand, some executor simply cannot handle the task, or unreasonably delay, and those can be grounds to ask the court to remove the executor and appoint someone else.
  • Court Objections: If the estate undergoes probate (and most do), you have the right to object to the probate court about anything you think is being done incorrectly or improperly. You can object to the appointment of a particular executor, you can object to the validity of a will, you can object to particular distributions (not just your own), you can object to sales of assets, you can object to how long things are taking ... in fact, you can object to almost anything. You just need to make sure you have valid grounds for doing so, and it's important to realize that settling an estate is a difficult task that takes time. See Court to find your particular court.
  • Lawsuits: If the probate judge does not respond to your objection as desired, or if there is no probate proceeding, then you can file a civil lawsuit against the estate. Such lawsuits can be expensive, and should be considered only as a last resort.

Additional considerations:

  • Expectations: Please keep in mind that although a will may be specific about an intended inheritance, other factors can sometimes intervene to modify or even entirely invalidate the inheritance. See Rules of Inheritance for details.
  • Inheritance Taxes: Some states have inheritance taxes for which the executor has the responsibility of paying, out of your share, before giving you your remaining inheritance. If your executor is using EstateExec, it will tell him or her if such taxes apply.
  • Executor Discretion: Unless the inheritance is a specific bequest, the executor may have some discretion in deciding how to give you your share of an estate. The executor may decide to liquidate assets and give you all cash (and cash equivalents), or the executor may mix and match assets to equal your share. You have to the right to ask for your share to be given in a certain form, but the executor does not have to respect your wishes. For this reason (and others), it is advisable to try to retain a good relationship with the executor (see Working with Executors).
  • Inheritance Receipts: When you receive an inheritance, the executor will likely ask you to sign a receipt, which can be required. However, the executor will often ask you, as a condition of receiving the proceeds, to waive any rights you may to decide to sue the estate or the executor in the future. Such waivers are best practice for an executor, but heirs are not required to waive their rights, so the decision is up to you. It may be best to sign anyway, to preserve the relationship and to receive your inheritance in a timely manner, but your ultimate recourse is to either convince the executor to drop the waiver, or object to the court.

Small Estate Rights

Most states have laws enabling small estates to be settled without full probate, sometimes without any court involvement at all. In such cases, there may be no formally appointed executor, and the heir can directly collect any inheritance to which he or she is entitled, by providing appropriate documentation to the current asset holders.

In California, probate is not required for "small" estates, enabling executors to save considerable effort and cost.

Small Estate Definition (CA)

In CA, an estate qualifies as "small" if the total gross value of the relevant estate assets is <$166,250.  Gross asset values should be calculated as of the date of death, and exclude:

  • Standard Probate Exclusions such as IRAs with named beneficiaries, community property with right of survivorship, and more
  • Cars, boats or mobile homes
  • Real property outside of California
  • Unpaid salary or other compensation up to $16,625 owed to the decedent
  • Any amounts owed to the decedent for services in the US Armed Forces

See CA Prob Code § 13050, but note that some options below do not require the estate to qualify as "small" according to this definition.

Affidavit for Collection of Personal Property

If an estate qualifies as "small", its executor can simply use an affidavit of collection to obtain legal possession of estate assets (other than real estate) without court involvement.

An affidavit is basically a sworn statement that what you are claiming is true. In this case, you can use an Affidavit for Collection of Personal Property stating that the decedent owned the property in question, that the decedent has passed away, and that you are the legal successor to the property (since you are the executor of the estate) and want to take possession of the asset (as part of the estate settlement process).

In fact, heirs themselves can use such an affidavit directly, bypassing the need for executor involvement. In such cases, however, the heir must affirm that there has been no official estate probate process in the courts, or that the executor has approved of the affidavit in writing.

Below is summary of the collection process; see CA Prob Code §§ 13100-117 for full details.

Affidavit Form

While there is not an official affidavit form you must use, many banks and other organizations have their own form templates, and it can simplify things to use whatever they prefer. In other cases, you may just want to use this example California Affidavit for Collection of Personal Property.

Attachments

When presenting a collection affidavit to someone currently in possession of an estate asset, it is helpful to attach:

  • A certified copy of the death certificate
  • Proof that the decedent owned the property (e.g., bank statement, storage receipt)
  • Proof of your identity (e.g., driver's license, passport)

If the decedent owned real estate (i.e., "real property") in CA, you will also need to attach an Inventory and Appraisal (form DE-160), signed by a probate referee.

Multiple Heirs

If there are other people entitled to receive the property, they must also agree to the collection and sign the affidavit.

Notarization

While the law does not require this affidavit to be notarized, many recipients will insist on it, so you should probably just get it done. Note that the notary is not endorsing your claim, simply verifying that you are who you claim to be, usually via a driver's license or other form of ID.

Since notarization costs a small fee per document signer, you may want to save a little money by listing multiple or even all assets on a single affidavit, even if you are collecting those assets from different places.

Timing

You must wait at least 40 days after the decedent's death to use a collection affidavit.

Court Petition for Real Property Succession

For real property (i.e., real estate), a "small" estate executor can petition the Superior Court location that would have jurisdiction for the estate to order that ownership of the identified real property pass to the identified party. There is no standard state-wide form for this petition: some Superior Court branch websites have local forms for your use, or you can simply ask them what they want.

See CA Prob Code §§ 13150-58 for details.

Attachments

When submitting the petition, you must attach:

Heirs

An heir can only use this process if no CA probate proceedings have occurred, or he or she has obtained written permission of the executor (in which case this written permission must be attached to the affidavit). If there are multiple people entitled to receive the property, they must also agree to the collection and sign the affidavit.

Timing

You must wait at least 40 days after the decedent's death to make a real property succession petition.

Affidavit for Transfer of Real Property

If the total gross value of all CA real property is <$55,245, you can use an Affidavit for Transfer of Real Property to obtain possession of the estate's real property (i.e., real estate) without court involvement.

Below is summary of the transfer process; see CA Prob Code §§ 13200-210 for full details.

Affidavit Form

You can use the California Form DE-305: Affidavit Re Real Property of Small Value.

Attachments

When presenting a transfer affidavit, you must attach:

Heirs

An heir can only use this process if no CA probate proceedings have occurred, or he or she has obtained written permission of the executor (in which case this written permission must be attached to the affidavit). If there are multiple people entitled to receive the property, they must also agree to the collection and sign the affidavit.

Notarization

Each signature in the affidavit must be notarized.

Timing

You must wait at least 6 months days after the decedent's death to use such a transfer affidavit.

All unsecured debts of the decedent/estate must be resolved before such a transfer affidavit can be used.

Small Estate Set Aside

Regardless of whether an estate qualifies as "small" according to the standard definition, if the estate's net value is <$85,900K (increased from $20K as of 1/1/2020), then official probate can be bypassed for a surviving spouse or the decedent's minor children.

In determining net estate value, add the gross value of all assets and subtract all debts, excluding:

  • Assets held in joint tenancy with someone else
  • Assets held in in structures which transfer the decedent's interest to someone else upon the decedent's death
  • Real estate located outside California

To activate this set-aside, you must file a petition in the CA Superior Court that would have jurisdiction for the estate. There is no standard state-wide form for this petition: some Superior Court branch websites have local forms for your use, or you can simply ask them what they want.

The granting of this set-aside is not automatic, and the court will consider a number of factors. If granted, then all debts of the estate will be barred (i.e., wiped clean), other than any liens/mortgages, and any expenses of the last illness, funeral charges, or estate administrations expenses, which must be paid.

See CA Prob Code §§ 6600-6615 for details.

Disbursement Considerations

Estate debts have priority over most distributions, so you should arrange to have all debts resolved before distributing assets using the approaches described on this page. Other than under the Small Estate Set Aside (which eliminates most debts), unpaid estate creditors have the right to sue heirs for the value of any distributions received.

Before paying any debts or making any distributions, be sure to account for any CA Family Entitlements, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.

If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.

See also Making Distributions.

Estate Debts

Finally, note that as an heir, you are NOT responsible for paying the debts of the estate out of your own funds. You do NOT inherit responsibility for paying the debts of parents, for example. If the estate is insolvent (i.e., cannot pay all its bills), then creditors simply end up with less than owed, or even nothing ... as do you.

If an estate ends up being insolvent, and you somehow received a distribution anyway (perhaps through a small estate process), some states allow creditors to sue you to reclaim any amounts they are still owed. So you can't inherit a debt outright, but if you receive a distribution that the estate needed to pay its bills, you may be forced to pay out some or all of that distribution.

EstateExec™ Leaves More $ for Heirs!

EstateExec is online software designed to help estate executors fulfill their duties, providing automated guidance, automated financial accounting, and even the option to work with a lawyer or other interested parties. As an heir, you can help ensure that your estate follows all the rules to a timely settlement by recommending EstateExec to your executor, (who often has never done the job before, and could use a little help). Anyone can get started using EstateExec for free, and pay just a one-time $99 licensing fee (per estate) if it proves useful.

EstateExec will likely save the estate thousands of dollars (in reduced legal and accounting expenses, plus relevant money-saving coupons), leaving more funds for distributions to heirs.  EstateExec is rated 4.5 stars () on TrustPilot reviews.

You may want to share information about EstateExec with your estate executor, or the original estate owner if still in the planning stage.

Copyright © 2014-21 EstateExec