If you've recently lost a loved one and found yourself in a position where probate seems daunting, there's good news. California law allows certain estates to bypass probate altogether, thanks to the small estate affidavit procedure. As a probate attorney, I can attest that this tool can be a lifesaver for many families, saving both time and money.

Many clients ask me whether they need to go through probate if their loved one's estate is relatively modest. In some cases, the answer is no. California offers the “Small Estate Affidavit” as an alternative to full probate for estates that meet specific criteria. This affidavit process can often be a faster and less costly way to transfer property to beneficiaries. Here's how it works:

What Is a Small Estate Affidavit?

In California, a small estate affidavit (also known as the "Affidavit for Collection or Transfer of Personal Property") allows heirs to collect and distribute assets from a deceased person's estate without going to probate court. This simplified procedure can apply if the decedent's estate qualifies as a “small estate.” Currently, a “small estate” in California is one with a gross value of $184,500 or less, excluding certain assets such as vehicles and real property outside California.

Who Can Use the Small Estate Affidavit?

In order to use the small estate affidavit procedure, an individual must be a legal heir, such as a surviving spouse, domestic partner, or other beneficiary. The process is designed for the transfer of specific assets like bank accounts, stocks, or tangible personal property—without court intervention.

How Does the Process Work?

1. Wait Period: You must wait at least 40 days after the decedent's death to initiate the process.

2. Prepare the Affidavit: The affidavit must include details about the deceased, the relationship to the person preparing the affidavit, and a description of the assets. Some institutions may have their own affidavit forms, so it's wise to check with each entity holding the assets.

3. Attach Necessary Documentation: The affidavit requires specific supporting documents, such as a certified copy of the death certificate, proof of the relationship to the deceased, and sometimes additional identification documents.

4. Present the Affidavit: Once prepared, the affidavit and supporting documents are presented to the institution holding the property, which should then release the assets to the heir.

Limitations of the Small Estate Affidavit

The small estate affidavit procedure is not suitable for all assets. For instance, if the estate includes real property exceeding $61,500, the property will generally still need to go through probate, albeit a more streamlined one called a “Spousal Property Petition” for a spouse or domestic partner.

Benefits of the Small Estate Affidavit

One of the main advantages of this process is speed and cost-efficiency. Because you avoid probate court, heirs can often obtain assets within weeks rather than months. Additionally, there are no probate fees, which can save a significant amount of money.

Conclusion

The small estate affidavit can be a fantastic way to avoid probate, but it's not without its restrictions. Knowing the limits and procedures can save time and money, making this a worthwhile consideration for many Californians with smaller estates. If you're unsure whether your loved one's estate qualifies, speaking with a probate attorney can help clarify whether this option is appropriate.

LEGAL DISCLAIMER

This article is intended for general informational purposes only and does not constitute legal advice or create an attorney-client relationship. Probate and estate laws are complex and vary widely, so it's important to consult with a qualified attorney regarding your specific situation. This blog post should not be a substitute for obtaining individual advice from a licensed professional.