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When and How to Use a California Small Estate Affidavits - Werner Law

When and How to Use a California Small Estate Affidavits

Troy Werner and his family

Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: August 29, 2022

When we die, our belongings are distributed among the living. Some assets and property, both tangible and intangible, have automatic rules of distribution. For example, a life insurance policy usually requires you to name at least one beneficiary when creating it, as the purpose of the policy is to leave behind a buffer to pay […]

When we die, our belongings are distributed among the living. Some assets and property, both tangible and intangible, have automatic rules of distribution. For example, a life insurance policy usually requires you to name at least one beneficiary when creating it, as the purpose of the policy is to leave behind a buffer to pay for funerary costs and provide some financial security for your loved ones. Such assets, accounts, and properties have the benefit that they are distributed among their respective beneficiaries at an expedited rate.

Other property, however, may need to be distributed under the supervision of the local courts, in a process known as the probate process. For example, a home can be co-owned by multiple parties, in which case the other parties may or may not have a right of survivorship, depending on the kind of ownership being discussed. Without a right of survivorship, the decision as to who gets your portion of the property will be determined through probate.

Properties and assets owned solely by you will become your estate after death, distributed either according to your last valid testament, or your resident state’s intestacy laws (in the absence of a will). The probate court is the setting wherein that last will is read and legitimized – and in the absence of a will, it becomes the setting wherein your chosen executor is tasked with distributing your assets as per state law.

While probate can take anywhere from a few months to over a year, the probate process is ultimately quite lengthy, no matter whether you own three properties in Bel-Air or have never owned a home in your life. But for smaller estates, there is one opportunity to speed things along: the small estate affidavit.

What Are California Small Estate Affidavits?

Small estate affidavits are legal documents certifying that your estate’s total qualifying value is under a set amount, thus qualifying your estate for an expedited probate process. Under such an affidavit, the transfer of your estate can be massively simplified in a non-formal probate case.

In California, the current limit for a small estate affidavit is $166,250.

This limit does NOT include certain properties, and exempts a certain amount of money, such as the decedent’s unpaid salary (up to $5,000).

A small estate affidavit can speed up probate by allowing the person drafting and executing the document to transfer property from your estate into their ownership through the respective banks and organizations that are holding your estate’s properties in the interim.

There may be other requirements to complete the process, such as a copy of the decedent’s death certificate, and your social security number as beneficiary. You may also need to obtain signatures from other potential heirs to ensure that they are okay with the contents of the affidavit, and the way the estate is being distributed.

Small estate affidavits are an attractive alternative to conventional formal probate because they take the courts out of the equation, massively speeding up the process, and cutting down on associated costs and fees. You will still need a lawyer to help you draft and execute a personalized small estate affidavit, and to minimize mistakes associated with DIY estate planning. In general, all you need to do is:

  1. Have the estate appraised by a professional appraiser and receive an Inventory and Appraisal form from them.
  2. Obtain a California small estate affidavit form. This is usually done through a lawyer or the county office of your relative’s residence.
  3. Attach proof of your identity, proof of the decedent’s ownership of any given property, a copy of their death certificate, and the completed Inventory and Appraisal form.
  4. Obtain all other valid signatures from respective beneficiaries okaying the contents of the affidavit.
  5. Notarize the document.
  6. Wait 40 days after the decedent’s death. Then,
  7. Use the document and a certified copy of the death certificate to transfer the respective property.

What Estates Can Qualify for a Small Estate Affidavit?

There is only one major qualification to legally implement a small estate affidavit – the total value of an estate’s qualifying assets cannot total over $166,250. However, it’s important to note that not everything a decedent owned in life needs to count towards that total. In general, you can exempt any of the following from this total:

  • Life insurance payouts sent to designated individuals rather than the estate itself.
  • Retirement account payouts, annuities, pensions
  • Joint or co-owned bank accounts
  • Any joint property owned with right of survivorship (it is transferred to the co-owners)
  • Property co-owned as community property
  • Property and assets held in a living trust
  • Debts and mortgages (they cannot be subtracted from the value of the total estate, either)
  • Vehicles (automobiles, mobile homes, recreational vehicles, and boats)

Furthermore, once all the above are omitted, your local government will require that you employ the services of a qualified and listed appraiser to ensure that your decedent estate’s total value does not exceed the limit for a small estate affidavit.

When Can You Implement a Small Estate Affidavit?

Small estate affidavits must be acquired and put to use before the probate process begins. Probate begins as soon as the respective executor or person put in charge of managing a decedent’s final affairs decides to petition for probate. All that is required to make a petition to begin the probate process is a person’s death certificate, so the probate process can start almost immediately after a person’s death.

However, if you are interested in pursuing a small estate affidavit to save on the costs and time-loss associated with a formal probate case, contact a lawyer and estate planning professional to determine whether your relative’s estate qualifies for a small estate affidavit.

Should You Set Up an Estate Plan?

Unfortunately, the logistics of dying are not always simple. Without an estate plan, it falls on the shoulders of the most responsible relative or close friend to determine and divide a decedent’s belongings, with help from the courts or an attorney. Sometimes, things like ownership and beneficiary designations can be difficult to untangle, turning even a modest estate into a headache and a half.

Estate plans are not exclusive to the rich and famous. You do not need generational wealth or parcels of land to make use of trusts and wills, and simple estate planning tools such as powers of attorney.

A little bit of foresight and the assistance of an experienced estate planning professional can help you put together a barebones and effective estate plan, leaving behind clear step-by-step instructions for your would-be executors, trustees, and beneficiaries.

If you do consider creating an estate plan, be sure to follow up on your plan every few years, reviewing it for changes you would like to make, or amending it to reflect recent events. Estate plans are powerful and useful tools, but they can also turn into a nuisance if they are severely outdated by the time you pass away.

If you would like to learn more about simple procedures, small estate affidavits, and what to expect during probate, be sure to talk to a lawyer. No two estates are exactly alike, and individual circumstances can greatly affect estate planning outcomes.

When and How to Use a California Small Estate Affidavits - Werner Law

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