Probate for Small CA Estates

Courthouse for estate probate

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

Small Estate Definition

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 Court 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.

See CA Prob Code §§ 6500-615 for details.

Debt Considerations

Executors and heirs should be careful about using the above options to claim assets, because any estate debts must be resolved at some point, and if an executor or heir does not have direct control over sufficient estate funds to do so, things could get messy. Note that creditors have the right to pursue recipients of estate assets, obtained via these mechanisms, for payment of estate debts.

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 Estate Debts and Claim Limitations.

See also General Probate.

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