Disclaimer: This information is provided for educational purposes only and does not constitute legal advice.
Detailed Answer
In California, a Small Estate Affidavit lets you collect certain personal property of a deceased person without formal probate. This streamlined process applies when the total value of the decedent’s personal property subject to probate does not exceed the threshold set by statute. As of January 1, 2023, that limit is $166,250. (Prob. Code §13100(a); see Cal. Prob. Code §13100.)
1. Determine Eligibility
- The decedent must have been a California resident, or have property in California.
- At least 40 days must have passed since the date of death. (Prob. Code §13101; Cal. Prob. Code §13101.)
- The total value of probate assets (personal property) must not exceed $166,250.
- No petition for formal probate or letters of administration may be pending.
2. Identify Heirs and Shares
Under California’s intestate succession laws, if there is no will, assets pass to heirs according to Probate Code §§6400–6513. Spouses, children, parents, and siblings inherit in set proportions. Confirm each heir’s share before completing the affidavit.
3. Complete the Small Estate Affidavit
- Use the statutory form or draft an affidavit stating your authority as an heir or successor.
- List all personal property items, their fair market values, and the name of the custodian holding each asset (e.g., bank, title company).
- Attach a certified copy of the decedent’s death certificate.
- Include a statement that no probate proceedings are pending.
- Swear or affirm the affidavit before a notary public. (Prob. Code §13103; Cal. Prob. Code §13103.)
4. File or Serve the Affidavit
For tangible personal property (e.g., vehicles, jewelry), present the original affidavit and death certificate to the property holder. For intangible personal property (e.g., bank accounts), you must file or lodge the affidavit with the clerk of the superior court in the county where the decedent lived. Provide the clerk with one copy of the affidavit and fee payment as required by local rules. (Prob. Code §13104.)
5. Collect and Distribute Assets
- Once served or filed, the custodian must deliver the property within 30 days after receiving the affidavit. (Prob. Code §13105.)
- Divide the proceeds among heirs according to the shares you listed. Keep clear records of distribution to avoid future disputes.
Helpful Hints
- Confirm the exact threshold amount on the California Legislature’s website before proceeding.
- Check local court rules for filing fees and required court forms.
- Use certified copies of death certificates; most banks will not accept originals.
- Obtain legal advice if the estate has mixed assets (real property plus personal property) or contested claims.
- Keep detailed receipts and releases from each custodian to prove proper distribution.