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Small Estates In California: 2020 Update

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A simplified procedure is available under California probate law to settle estates with assets that do not surpass a certain threshold, making it a “small estate.”  In a small estate, you can use an affidavit to transfer decedent’s assets, and avoid a formal probate proceeding in the California probate courts. The legal requirements have changed as of January 1, 2020 to qualify as a small estate.

What Is Considered A Small Estate In California?

As of January 1, 2020 the answer is:  $166,250 or less.  The old amount of assets to be considered a small estate in California was $150,000.

$166,250 is also the new limit for small estate affidavits under California probate code section 13100.

For small estate affidavits to transfer real property in California the limit increased to $55,425 from $50,000.  See California Probate Code section 13200.

Now Californians can avoid probate if the decedent’s total estate does not exceed the new limit of $166,250

How Do You Determine If The Estate Qualifies As a Small Estate Under California Law?

To determine whether the decedent’s assets qualify as a small estate in California, include the value of decedent’s personal and real property.  If the assets are valued at $166,250 or less, the estate is considered a small estate under the new California law.

What Is A Small Estate Affidavit?

Under California law, if a minimum of 40 days have passed from the decedent’s death, and no one has opened up a probate proceeding, a small estate affidavit can be used to transfer personal property such as bank accounts.  A small estate affidavit permits you to acquire an estate asset to which you are entitled.

The requirements of the small estate affidavit are set forth in California Probate Code 13101.  A California small estate affidavit must include:

(1) Decedent’s name

(2) The date and place of decedent’s death

(3) A statement that at least 40 days have elapsed since death, as shown in a certified copy of decedent’s death certificate

(4) Either of the following, as appropriate:

(A) “No proceeding is now being or has been conducted in California for administration of the decedent’s estate.”

(B) “The decedent’s personal representative has consented in writing to the payment, transfer, or delivery to the affiant or declarant of the property described in the affidavit or declaration.”

(5) “The current gross fair market value of the decedent’s real and personal property in California, excluding the property described in Section 13050 of the California Probate Code, does not exceed [Insert dollar amount specified in subdivision (g) of Section 13101 of the California Probate Code].”

(6) A description of the property of the decedent that is to be paid, transferred, or delivered to the affiant or declarant.

(7) The name of the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the described property.

(8) Either of the following, as appropriate:

(A) “The affiant or declarant is the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent’s interest in the described property.”

(B) “The affiant or declarant is authorized under Section 13051 of the California Probate Code to act on behalf of the successor of the decedent (as defined in Section 13006 of the California Probate Code) with respect to the decedent’s interest in the described property.”

(9) “No other person has a superior right to the interest of the decedent in the described property.”

(10) “The affiant or declarant requests that the described property be paid, delivered, or transferred to the affiant or declarant.”

(11) “The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.”

(b) Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.

(c) If the particular item of property to be transferred under this chapter is a debt or other obligation secured by a lien on real property and the instrument creating the lien has been recorded in the office of the county recorder of the county where the real property is located, the affidavit or declaration shall satisfy the requirements both of this section and of Section 13106.5.

(d) A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.

(e) If the decedent’s personal representative has consented to the payment, transfer, or delivery of the described property to the affiant or declarant, a copy of the consent and of the personal representative’s letters shall be attached to the affidavit or declaration.

(f) If the decedent dies on or after April 1, 2022, the list of adjusted dollar amounts, published in accordance with subdivision (c) of Section 890, in effect on the date of the decedent’s death, shall be attached to the affidavit or declaration.

(g) (1) If the decedent dies prior to April 1, 2022, the dollar amount for paragraph (5) of subdivision (a) is one hundred sixty-six thousand two hundred fifty dollars ($166,250).

(2) If the decedent dies on or after April 1, 2022, the dollar amount for paragraph (5) of subdivision (a) is the adjusted dollar amount, published in accordance with subdivision (c) of Section 890, in effect on the date of the decedent’s death.

Generally, the California small estate affidavit can be presented to the financial institution or other asset-holder along with the decedent’s death certificate and the asset will be released.

 

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