Settling Small Estates (CA)
In California, probate is not required for "small" estates, enabling executors to save considerable effort and cost. Depending on value and types of assets, California provides the following procedures for transferring assets without probate (and regardless of estate size, probate is not required if an estate contains only assets exempt from probate).
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.
Small Estate Definition
In CA, an estate qualifies as "small" if the total gross value of the relevant estate assets is <$184,500 (or <$166,250 for deaths before April 1, 2022).
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
- Real property for which a Court Petition for Succession of Primary Residence was filed (see below)
- Real property outside of California
- Cars, boats or mobile homes
- Unpaid salary or other compensation up to $18,450 owed to the decedent (or $16,625 before April 1, 2022)
- Any amounts owed to the decedent for services in the US Armed Forces
See CA Prob Code § 13050 (and Updated CA Small Estate Values).
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 (note that you may need to update its referenced values to be current as per above).
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)
- Form DE-300 (lists updated legislative limits)
- If there are multiple people entitled to receive the property, they must also agree to the collection and sign the affidavit.
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.
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.
Liability for Debts
Be aware that the person receiving assets under this affidavit will be personally liable for any unresolved estate debts up to the net value of the received assets at the time of the affidavit presentation.
Timing
You must wait at least 40 days after the decedent's death to use a collection affidavit.
Court Petition for Succession of Primary Residence
If the decedent's primary residence had a gross value <$750,000 at the time of death, a "small" estate executor can petition the Superior Court location that would have jurisdiction for the estate to order that ownership of that real property pass to the rightful heir. 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 process; see CA Prob Code §§ 13150-57 for full details.
Petition Form
Attachments
When submitting the petition, you must attach:
- A certified copy of the death certificate
- A copy of the will (if it exists)
- Form DE-300 (lists updated legislative limits)
- An Inventory and Appraisal (form DE-160), signed by a probate referee
- If there are multiple people entitled to receive the property, they must also agree to the collection and sign the affidavit.
Notice
Within 5 business days of submitting the petition to the court, you must provide a copy of your petition to anyone entitled to inherit according the will (if there is one), and anyone who would inherit if there were no will (i.e., heirs-at-law),
Liability for Debts
Hopefully, other assets will be used by the person settling the estate to resolve any estate debts, but be aware that the person receiving the property under this court petition will be personally liable for any unresolved estate debts up to the net value of the property at the time of death.
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 <$61,500 (or <$55,245 if the death occurred before April 1, 2022), 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:
- A certified copy of the death certificate
- A copy of the will (if it exists)
- Form DE-300 (lists updated legislative limits)
- An Inventory and Appraisal (form DE-160), signed by a probate referee
- 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.
Liability for Debts
Hopefully, other assets will be used by the person settling the estate to resolve any estate debts, but be aware that the person receiving the property under this affidavit will be personally liable for a share of any unresolved estate debts up to the net value of the property at the time of the affidavit notarization.
Timing
You must wait at least 6 months days after the decedent's death to use such a transfer affidavit.
Small Estate Set-Aside
If the estate's net value is <$95,325 (or <$85,900 for deaths before 4/1/22, or <$20K before 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 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.
You will also have to provide official notice of your petition to each person named as executor in the decedent’s will, to any surviving spouse, to any surviving children, and to each heir of the decedent (if known).
The granting of this set-aside is not automatic, and the court will consider a number of factors. If granted, the court will order payment from these resources for any expenses of the last illness, funeral charges, or estate administration. In addition, family members receiving this set-aside will become personally liable for any of the decedent's unsecured debts, up to the limit of the value of the set-aside, plus any granted homestead exemption. In other words, this set-aside process simplifies estate administration, but transfers responsibilities for the decedent's debts (up to the amount received) to the family.
See CA Prob Code §§ 6600-6615 for details.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in CA, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to CA Executor Compensation, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow CA probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
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.
Court
In CA, the local Superior Court has jurisdiction over probate cases. If you are using EstateExec and you set the county of legal residence on the Decedent tab, a direct link to the appropriate court will appear here.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in CA.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in CA.
Finally, in case you're interested, details about handling small estates in other states can be found here: