USING A “SMALL ESTATE AFFIDAVIT” TO AVOID PROBATE IN CALIFORNIA

By John C. Clark, Attorney at Law

California law provides a procedure for avoiding the probate of an estate if the total value of the estate falls below a certain threshold and satisfies other conditions. If the estate qualifies as a “small estate,” the executor of the will or next of kin (in an intestate estate) may collect assets without the need to file a petition in probate court to accomplish the same, thus saving significant time and expense.

What qualifies as a “small estate”?

A qualifying estate is one where the decedent died either with or without a will but with a low total gross value of their assets. In California, this means less than or equal to $166,500 if the decedent passed before April 1, 2022, or $184,500 if the decedent died on or after April 1, 2022. The total gross value of the assets includes all real and personal property.

Given these limitations, most estates in California which include real estate are not likely to qualify as a “small estate.” As a result, this small estate affidavit is principally used to gather assets held in bank accounts or other financial institutions.

In handling retirement accounts, including 401K, pensions, and IRA accounts, the decedent should have designated an individual or individuals as direct beneficiaries. In doing so, these assets can usually be excluded from probate or a small estate affidavit.

However, where the decedent failed to designate a pay-on-death beneficiary properly, or if the beneficiary named is the decedent’s estate, the assets would be included in any small estate calculation and are also subject to retrieval via the small estate affidavit.

While the California Legislature intended that this procedure be relatively simple for determining small estate qualification and completing paperwork, it is not unusual that the determination can become complicated by various factors.  In such a situation, the estate executor should consult an attorney.

Who can present and use a Small Estate Affidavit?

For a decedent who died with a will, the designated executor of the will would be the person who may properly complete and submit a small estate affidavit.

If the decedent died without a will, a person who has a right to inherit under the laws of intestate inheritance would possess the authority to gather assets through the small estate affidavit.  Under intestate succession laws, that would usually be a surviving spouse, parent, or child. If neither exists at death, then perhaps a sibling, cousin, or niece/nephew may be an appropriate applicant. 

How do you obtain and complete the Small Estate Affidavit?

If the estate qualifies as a “small estate,” and if you are the appropriate representative or next of kin, then you should obtain a small estate affidavit form from the county's probate court in which the decedent was a resident at the time of death.

The affidavit can usually be obtained easily online from the county probate court’s self-help center or through an internet search. Here is a link to the affidavit form provided by the California Judicial Council. ​

You will need to include attachments to the form, which include a certified copy of the death certificate, proof that the decedent owned the property you are listing, proof of your identity, and an inventory and appraisal of any real property owned by the decedent.

In addition, you’ll need to complete “Form DE-160” if real property is applicable. Although this form is not required to be notarized by the Probate Court, most financial institutions will require it to be notarized to accept the document as authentic and release the assets to the applicant. Also, you will need to obtain the signatures of other persons who are legally entitled to inherit where the decedent died intestate or where the will names co-executors. ​

What is the process for transferring assets?

You must wait at least 40 days after the date of death before presenting the affidavit and attachments to any person or company holding the property sought to be obtained.  Once obtained, the assets should be carefully accounted for and then distributed pursuant to the instructions in the will or according to the intestate succession laws. ​

In addition, there may be income tax issues that can arise, so it is strongly advised that you consult with an attorney and an accountant before distributing funds to beneficiaries.

Don't Hesitate to Get Legal Assistance

Although this Small Estate Affidavit procedure in California is intended to be simple, it can still be complicated and confusing. Consult with a probate attorney for assistance. It’s a small price to pay, and beneficiaries can share the legal expenses. Our attorneys are available to discuss comprehensive estate planning with you. Contact us today.