Small Estate Affidavit

This page provides information about a Small Estate Probate in California. California Probate Code (CPC) 13100 provides for a Small Estate Procedure to avoid a full probate if the following requirements are met:

A-The gross value of the decedent’s real and personal property in the state of California does not exceed $150,000. Valuation is based on the date of death. When calculating the gross value, encumbrances such as a mortgage cannot be taken into consideration to reduce the value of the estate, hence the net value of the estate is irrelevant. The calculation does however exclude all non-probate property, such at joint tenancy assets, trust assets, 401K’s and IRA’s, Life Insurance, Pay on death accounts, accounts with named beneficiaries, Pension accounts, death benefits, some payments if the decedent was in the armed forces, unpaid salary up to $15,000, and California registered vehicles.

B-40 days must after the date of death before the Small Estate Affidavit can be used.

C-This procedure can be used by heirs/beneficiaries of the estate, trustees if a trust exists, or other interested parties with rights to intestate succession, such as a surviving spouse or sibling.

D-The Small Estate Procedure cannot be used for real property, only personal property in the State of California. However, real property is used for the sub $150,000 calculation as explained above.

The following is a sample Small Estate Affidavit as provided by the Superior Court of California (County of Los Angeles) Pamphlet for small estate procedures:

 

DECLARATION PURSUANT TO CALIFORNIA PROBATE CODE SECTIONS 13100-13115

The undersigned, _____________________________________________(name of declarant), hereby declares:

1. I am the successor in interest of decedent _____________________________ (name of decedent), who died in ____________________ (County), California on _____________________.

2. At least 40 days have elapsed since the death of the decedent, as shown in a certified copy of the decedent’s death certificate attached to this declaration.

3. [Check either of the following as appropriate:]

␣ ␣ No proceeding is now being or has been conducted in California for administration of the decedent’s estate.

[OR]

␣ ␣ The decedent’s personal representative has consented in writing to the payment, transfer, or delivery of the property described in this declaration.

4. The current gross fair market value of the decedent’s real and personal property in California, excluding the property described in California Probate Code Section 13050, does not exceed one hundred fifty thousand dollars ($150,000).

5. The following __________________________ (e.g. “account”) constitutes a portion of the property in the decedent’s estate: _________________________________________________________________ (describe property claimed by this declaration – e.g., “current balance in Savings Account No. 123-45678 at Main Street National Bank, Head Office, 123 Main Street, Los Angeles, CA 90017″).

6. Decedent died without a will and, under Section 6402 of the California Probate Code, I am the decedent’s sole heir at law and the “successor” of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent’s interest in the described property. [Modify appropriately if (i) the declarant is decedent's testate beneficiary of the described property or (ii) decedent died without a will and left more than one intestate heir, but declarant has the superior right under California Probate Code Section 6402 to inherit the described property.]

7. No other person has a superior right to the decedent’s interest in the described property.

8. Pursuant to the facts set forth above and Sections 13100-13115 of the California Probate Code, I request that the above-described property be paid, delivered or transferred to me.

9. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

(Name)

Declarant Dated:

[Note: If more than one declarant is entitled to receive the described property, all should join in executing the declaration and the allegations should be modified to reflect the plural.]

 

CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC

STATE OF CALIFORNIA                           )

COUNTY OF ________________________)

On __________________ before me, _________________________________________ (here insert name and title of the officer), personally appeared

_______________________________________________________________________

_______________________________________________________________________

_______________________________________________________________________,

who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 

 

_______________________________                                              (Notary Public Seal)
Notary Public Signature

For a .pdf sample form of the small estate affidavit, please click here.

Once the form is completed, you must have it notarized by a California approved Notary. Once notarized, the affidavit can be used to transfer assets of a decedent to the appropriate beneficiary/heir. With the affidavit, no court interaction or filing is needed. Additionally, attach a certified death certificate when submitting the small estate affidavit to an institution.

Lastly, many banks, brokerages, and various other financial institutions have their own in-house forms in lieu of the generic California Probate Small Estate Affidavit form. The institutions might require you to use their form to access decedent’s assets. Before spending time and money to get a form notarized, contact the institution holding the decedent’s assets to see if they have their own form for small estate procedures.

Note – The recipient of the assets using a small estate procedures assumes all liability, including liens, encumbrances and possible tax liabilities associated with assets. Thus it is advisable to speak with an attorney before utilizing the small estate procedure.

 

Update 1 – Sometimes bank, escrow companies, and other financial institutions are not familiar with legal proceedings such as a Small Estate Affidavit. I recently encountered such an institution, which required a bit of “guidance” for the matter in the form of a cover letter explaining a small estate affidavit procedure.

This specific cover letter is for a small estate affidavit for a probate procedure already in progress for the decedent. I have copied a sample cover letter for a small estate affidavit below. Feel free to use/edit it as needed:

Law Office of Alex Avakian

Date:   August 26, 2011

RE:     Decedent’s Small Estate Affidavit

To:      Institution holding funds

The purpose of this letter is to explain the attached “Small Estate Affidavit” and the process in which funds held in escrow for (“Decedent”) are to be released to his/her rightful heir, (beneficiary), without a Probate court order.

As you know, a probate proceeding has been initiated for the estate of Decedent. Upon commencing probate, Letters of Administration were obtained and used to sell Decedent’s 50% interest in vacant real property in XXXX, CA with an APN of XXXX. Upon sale and as a result of various fees a total of $XXXX remains in escrow awaiting a probate court order for release.

Recently, during probate proceedings carried out by our firm, we have been advised by the probate court to obtain funds held in escrow using a “Small Estate Affidavit” instead of completing a the full probate process as it is less time consuming, less expensive, and the most efficient and appropriate manner in which to conclude this probate. (Note – Obviously your facts will vary – Adjust as needed)

A Small Estate Affidavit is a mechanism that can be used in certain circumstances to transfer a decedent’s personal property to successors without a formal probate per Sections 13100-13115 of the California Probate Code. Personal property refers to anything that is not real estate, including money due to the decedent. The main requirement of using a Small Estate Affidavit is that the gross value of the estate must be below $150,000.00, which is true for Decedent’s estate as his 50% interest was his only known asset, and is valued at $XXXX.

All the requirements needed to utilize a Small Estate Affidavit have been met and the Personal Representatives consent (personal reps name) has been attached to this letter. Additionally, please find attached to this letter the official Los Angeles County Small Estate Transfer Pamphlet with the rules, procedure and the required documents which have been properly executed by the Personal Representative.

It is requested that the funds due Decedent, totaling $XXXX be released to the rightful heir, (beneficiary), as she is the only surviving heir (explain relation).

Should you have any questions or comments, please do not hesitate to contact us.

Thank you,

Signature