Law Office of Suzanne P. Nicholl, PC
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Is a Formal Probate Proceeding Always Necessary?

| Apr 20, 2020 | Uncategorized |

Coping with the death of a loved one and the formal probate proceeding can be daunting. If the decedent’s assets are not already transferring outside of probate, for example by jointly owned property, trust property, or property determined by beneficiary designation, a formal probate proceeding can seem like an absolute certainty. However, in some such cases, a formal probate proceeding may actually be avoided altogether.

The California Probate Code provides a streamlined procedure to settle an estate with assets under a certain threshold value, thus qualifying it as a “small estate.” In these small estates, an affidavit may be used to transfer the decedent’s assets.

Small Estate Affidavit for Transfer of Personal Property

Provided no formal probate proceeding has been opened in California and pursuant to California Probate Code Section 13100, a small estate affidavit may be used by the decedent’s successor to transfer a personal property asset of the estate to which he or she is entitled from a financial institution or other asset holder when:

(1) the gross value of a decedent’s real and personal property located in California, but excluding property described in Section 13050, does not exceed $166,250.00 (increased from $150,000.00 as of January 1, 2020 and to be adjusted periodically in accordance with Section 890); and

(2) a minimum of forty (40) days have passed from the date of the decedent’s death.

The personal property assets that can be transferred using this method include money due the decedent, tangible personal property of the decedent, or evidence of a debt, obligation, interest owed to the decedent.

California Probate Code Section 13101 sets forth the specific requirements for the small estate affidavit which include, but are not limited to, the following: (i) the decedent’s name; (ii) the date and place of the decedent’s death; (iii) a statement that at least 40 days have elapsed since death, as evidenced by a certified copy of decedent’s death certificate; (iv) a description of the decedent’s property to be paid, transferred, or delivered to the affiant or declarant; (v) the name of the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the described property; and (vi) a certified copy of the decedent’s death certificate attached to the affidavit.

It is also worth highlighting that, pursuant to California Probate Code Section 13101(b), the small estate affidavit may be executed by more than one person so long as all are a successor of the decedent and no other person has a superior right to any of their respective interests in the decedent’s estate.

Small Estate Affidavit for Transfer of Real Property

Similar to the small estate affidavit for transfer of personal property, provided no formal probate proceeding has been opened in California and pursuant to California Probate Code Section 13200, a court certified small estate affidavit may be recorded by the decedent’s successor to transfer real property to which he or she is entitled when:

(1) the gross value of the decedent’s real property in California does not exceed $55,425.00 (increased from $50,000.00 as of January 1, 2020 and to be adjusted periodically in accordance with Section 890);

(2) a minimum of six (6) months have passed from the date of the decedent’s death; and

(3) the affidavit has been filed in the superior court of the county in which either the decedent was domiciled in California or the county where the real property is located if the decedent was domiciled outside of California.

California Probate Code Section 13200 also enunciates the specific requirements for the above mentioned small estate affidavit for transfer of real property and are, generally, of a similar procedural nature to the small estate affidavit for transfer of personal property.

Collection by Affidavit of Compensation Owed Deceased Spouse

Likewise, provided no formal probate proceeding has been opened in California and pursuant to California Probate Code Section 13600, the affidavit procedure may also be used by a surviving spouse to collect any salary or compensation owed by the decedent’s employer not to exceed $16,625.00 (increased from $15,000.00 as of January 1, 2020). Unlike the other affidavits discussed above, there is no minimum time that must elapse from the date of the decedent’s death before the surviving spouse may use this affidavit procedure.

California Probate Code Section 13601 sets forth the specific requirements for the such an affidavit.

It should be noted that this salary or compensation owed by the decedent’s employer is actually excluded, pursuant to California Probate Code Section 13050(c)(2), when ascertaining the gross value of the decedent’s personal and real property in California for the purposes of the small estate affidavit to transfer personal property discussed above.

Conclusion

The affidavit procedures available in small estates offer an expedited transfer of assets during an already emotionally turbulent time and serve to help a decedent’s successor avoid a costly formal probate proceeding.

The contents of this article are meant for general informative and educational purposes and in no manner whatsoever constitute legal advice. When electing to pursue any of the aforementioned procedures, it is recommended that a licensed attorney always be consulted and retained. If you suspect any of the aforementioned affidavit procedures may be applicable to you, please contact our law office.

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