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What Is a Small Estate Affidavit?

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Written by Troy Werner

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POSTED ON: February 10, 2021

In California, a "small estate affidavit" is often used to resolve final estate matters for a deceased person who died without a will and can help fast track the costly, lengthy process of probate. A small estate affidavit is a state-specific legal document used to skip the estates' probate process with a total value under […]

In California, a "small estate affidavit" is often used to resolve final estate matters for a deceased person who died without a will and can help fast track the costly, lengthy process of probate.

A small estate affidavit is a state-specific legal document used to skip the estates' probate process with a total value under a specific limit. This affidavit can be used alongside the decedent’s death certificate to release assets and property to the individuals entitled to said assets and property.

When a person dies, their belongings must be distributed among the living. Estate planning documents help guide a person’s surviving relatives through the inheritance process, so everything is distributed per the decedent’s wishes.

When this isn’t possible, i.e., in the absence of a will or any other estate planning document, state intestate law takes over. This usually means that the decedent’s belongings are equally distributed between their spouse and surviving kin. In either case, the probate court would:

      • Supervise the entire process.
      • Settle disputes between family members.
      • Appoint an executor to manage and distribute the decedent’s assets.

The probate court is also the place to argue against a will when coercion or fraud might occur. The probate process can take a long time and can be costly. Costs and rules vary from state to state, yet most states also provide families with the ability to shorten or bypass the probate process with a few simple tools. One such tool is a small estate affidavit.

Understanding California Small Estate Law

The limit for small estates in California is currently at $166,250. This means any estate with a total value at or under this amount can qualify as a small estate and take advantage of a probate skip. The typical probate process can take at least seven months and up to several years.

The more complex the estate, the more complex the estate's assets, and the more creditors the decedent had, the longer probate can take. Disputes and arguments further extend the process. Most probate cases will require legal help - which can cost a substantial chunk of the estate’s total value in some cases.

Expediting or even skipping probate is an excellent idea for tiny estates and extensive estates, respectively. Even estates valued at far more than $166,250 can use other tools to reduce the number of assets and properties flowing through the probate process if a comprehensive and individualized estate plan is set up before death.

Which Assets Are Subject to Probate?

When evaluating an estate, certain assets and property will not count towards the estate’s total. That is because not everything passes through probate. The probate process is meant to help distribute assets that haven’t already been distributed.

This means that anything with a designated beneficiary will not be included in the probate estate (it still counts towards the estate’s value for tax purposes, however). Examples of shared assets and property with attached beneficiaries include:

      • Pensions
      • Annuities
      • Retirement accounts
      • Life insurance policies
      • Certain bank accounts
      • Any assets and property held in a living trust

Certain assets are only partially owned by a single individual, and that person’s share is often automatically distributed to the co-owners after death. Examples include property held in joint tenancy and community property with a right of survivorship.

However, if a property was co-owned without an explicit right of survivorship (as with property owned as a tenancy in common), then the late owner’s share may be passed to their heirs rather than the property’s co-owner.

When determining an estate’s total value, it helps to seek professional help. Salaries and wages up to a certain total amount also do not count towards the estate’s total value. Neither do most household goods and personal items that usually pass immediately to the decedent’s family after death.

In California, any property held outside of the state and boats, cars, and mobile homes, do not count towards the estate’s total value. Estate planning professionals can help you ensure that you do not miss anything during the evaluation process and prepare the necessary paperwork for a small estate affidavit.

Filing a Small Estate Affidavit

A small estate affidavit is prepared before the probate process begins. If you have excluded all exempt property and concluded that the estate is worth $166,250 or less, you may use a small estate affidavit to begin an informal probate case/distribution if 40 days have passed since the date of death, and no probate case has been opened/begun.

If the probate process has begun, you will need permission from the estate’s executor/personal representative to claim property through a small estate affidavit. A copy of the death certificate and a small estate affidavit is needed when wishing to claim property you are entitled to from the holding bank, individual, or financial institution. The process for creating and legitimizing the affidavit is simple:

    1. First, you will need the document itself. Financial institutions often offer their own affidavits, or you can have one created by an estate planning professional.
    2. Next, you will need the following documents for the property you are claiming:
        • Proof of your own identity.
        • Certified copy of the decedent’s death certificate.
        • Proof that the decedent owned said property.
        • If the decedent left behind real estate, a filled-out copy of Form DE-160 signed by a probate referee, of all real estate property they owned.
    3. Then, it is a good idea to have the document notarized. This is not strictly needed, but many institutions insist on it. If other people are inheriting through a small estate affidavit, they too must sign yours (and you theirs).

Informal probate cases are meant to greatly simplify the process of distributing assets after death for smaller estates. They can be a great tool to avoid the costs of probate and speed up the inheritance process.

Alternatives for Avoiding Probate

Aside from a small estate affidavit, beneficiary designations and living trusts can be helpful tools when transferring property without probate, for example:

      • Transfer-on-death (TOD) and payable-on-death (POD) clauses for property and accounts let you move assets and money immediately after death to a beneficiary of your choosing.
      • A trust lets you appoint a third party to hold assets and property for a beneficiary when you die and take over the distribution of said assets and property.

However, it is more complicated to set up and manage, making it ideal for larger estates. No matter what you decide to do, seeking professional legal help is important. A simple mistake or oversight can cost you and your family dearly. Individualized estate planning can save you time and money and a great deal of stress.

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