Does a small estate affidavit need to be filed with the court in california

Save time and money when you wrap up an estate in California by using these probate shortcuts.

California offers some probate shortcuts for surviving spouses and for "small estates." These procedures make it easier for survivors to collect property left by a person who has died. Inheritors may be able to access the property more quickly, and with less hassle and fees, compared to jumping through the hoops of regular probate. These procedures, which allow you to skip or speed up probate, might loosely be called "summary administration," "small estate probate," or "simplified probate," among other terms.

You likely have access to some of these simplified probate procedures if:

• You are the surviving spouse or registered domestic partner of the deceased person, or
• The estate of the deceased person is considered "small" (see below for the calculation).

Spouses Can Often Skip Probate Court

In California, the spouse or registered domestic partner of a deceased person can often inherit property without going through probate. In some cases, such as when inheriting furniture or personal effects, no particular procedure is necessary.

For property that has a title document—such as real estate—the surviving spouse can usually either:

• skip probate and use an affidavit (sworn statement) to get title to the property, if the real estate is community property with right of survivorship or joint tenancy property, or
• petition the probate court for an order declaring that the property belongs to the surviving spouse.

If an employer owes the deceased person compensation—such as unpaid salary or unused vacation days—a surviving spouse can also:

• collect up to $18,450 of the compensation using a simple affidavit.

1. Property With Right of Survivorship

If the spouses owned property together with right of survivorship—either as joint tenancy property or community property with right of survivorship—it will pass automatically to the surviving spouse without the need for probate. Although these ownership methods bypass probate, the surviving spouses might still need to retitle the property in their sole name. To do that, the surviving spouse can usually prepare a simple affidavit (sworn statement) and attach the death certificate for the deceased spouse. For real estate, this affidavit is usually accompanied by another simple document called a Preliminary Change of Ownership Report, and both will need to be "recorded"—that is, filed with the land records office in the county where the real estate is located. A new deed is not necessary.

2. Spousal Property or Domestic Partner Petition

For property that's not owned with right of survivorship, the surviving spouse or registered domestic partner can file a Spousal or Domestic Partner Property Petition with the probate court. This procedure does require several steps, but it is still more streamlined than regular probate. Additionally, there's no limit on the value of property that can be transferred this way. In other words, a probate court can approve a petition for even a $2 million home, and declare it as belonging to the surviving spouse. (But remember, if the property is owned with right of survivorship, you won't need to go this route and can use a simpler affidavit instead.)

A spousal property petition can be filed for assets like real estate, stocks and bonds, vehicles, and bank accounts. The petition involves the following steps:

1. Fill out form DE-221, the Spousal or Domestic Partner Property Petition. This requires providing information such as: whether the deceased person left a will (and attaching it, if so), whether the deceased person is survived by children or other immediate family members, the legal description of any real estate involved, and support for the surviving spouse's claim to the property.
2. File the petition with the local probate court. The court will automatically set a hearing date.
3. Give notice of the hearing to immediate family members and beneficiaries named in the will. (Unless someone objects to the petition, no appearances in court are necessary.)
4. Fill out form DE-226, the Spousal or Domestic Partner Property Order, for the judge to sign.
5. Once the judge has signed the order and approved your petition, file the order in the land records office in any county where real estate is located. You can also use the order to get title to bank accounts, securities, vehicles, and other titled assets.

3. Unpaid Compensation Owed

If an employer owed the deceased person compensation such as unpaid salary or unused vacation days, the surviving spouse or registered domestic partner may also collect up to $18,450 (for deaths on or after April 1, 2022) of the compensation using a simple affidavit. (Probate Code § 13600.) The spouse will also usually need to prove their identity. The process should be quick and straightforward.

California's Small Estate Probate Procedures

California also offers small estate procedures that allow inheritors to use a streamlined version of probate when the value of the assets left behind is less than a certain amount. "Small estates" are defined as estates whose value is no more than $184,500 (for deaths on or after April 1, 2022). This value rises every three years to account for inflation, and was previously $166,250.

You might be surprised to discover that even relatively large estates can qualify for these procedures. Why? Only the "probate estate" is counted. This means that many assets are not included, such as:

• cars, boats, and mobile homes
• real estate outside of California
• property held in a living trust
• joint tenancy property
• property that goes outright to a surviving spouse
• life insurance, death benefits, and other assets not subject to probate that pass to named beneficiaries, like payable-on-death accounts or real estate transferred using a transfer-on-death deed
• unpaid salary or compensation owed to the deceased person by an employer, up to $18,450, and
• bank accounts owned by multiple people.

(Cal. Prob. Code § 13050.) In other words, a very large estate can still qualify as a "small" estate in California if many of the assets do not need to be factored into the calculation.

Example: Lamont, a California resident, dies and leaves behind a home worth $900,000 using transfer-on-death deed. He also leaves behind $200,000 in life insurance proceeds, $150,000 in a bank account owned with his brother, a car worth $15,000, and a $200,000 condo in Oregon. He also has $20,000 in a savings account with no named beneficiary and some furniture worth $5,000. The home, life insurance proceeds, joint bank account, car, and out-of-state condo will all pass outside of probate in California. The remaining property—the $20,000 in the savings account and the furniture—are well under the maximum value for a "small estate" in California, so Lamont's estate can take advantage of the small estate probate procedures.

If your estate qualifies as a small estate, you can use one of these procedures:

1. a small estate affidavit for property not exceeding $184,500 (not available if the property includes real estate)
2. an affidavit for real property of small value for real estate not exceeding $61,500 (available only for real estate)
3. a petition for the probate court to declare that the inheritor has a right to take the property without probate, for property not exceeding $184,500 (available for property that includes real estate)

1. The Small Estate Affidavit

If the total probate estate does not exceed $184,500 (this is the maximum value for deaths occurring on or after April 1, 2022), you can use the small estate affidavit to collect all property other than real estate. You'll prepare a sworn document, called an Affidavit for Collection of Personal Property, stating that you're entitled to a certain asset. When the person or institution holding the property—for example, a bank where the deceased person had an account—receives the affidavit and a copy of the deceased person's death certificate, it releases the asset.

Waiting period: You must wait 40 days after the death to present the affidavit to the holder of the property. (Cal. Prob. Code § § 13050 and 13100.) Note this is a much faster wait than for full probate proceedings, which can easily range from 7 months to 18 months in California.

2. The Affidavit for Real Property of Small Value

If the estate includes real estate that doesn't exceed $61,500 in value (again, this is the value for deaths occurring on or after April 1, 2022), you can file an Affidavit re: Real Property of Small Value (DE-305) with the probate court. Again, this affidavit amounts to an out-of-court procedure you can use to collect the property. You'll also have to record the affidavit with the County Clerk-Recorder in the county where the real estate is located.

Waiting period: You must wait six months after the death to file the affidavit. (Cal. Prob. Code §§ 13200 to 13208.)

3. The Petition for an Order Determining Succession to Property

The last probate shortcut is a petition for the probate court to make an order that states you have the right to the property. It's available for probate estates not exceeding $184,500, and can be used to transfer both real estate and personal property. Personal property is essentially all property that is not real estate. If the estate does not have any real estate in it and solely consists of personal property, you should use the simpler small estate affidavit procedure (above) instead.

The petition to determine succession to real property includes these steps:

1. Fill out the Petition to Determine Succession to Real Property. This requires providing information such as: the approximate value of the estate, a description of the property the beneficiary is asking for, and the name, age, address and relationship of immediate family members and any beneficiaries named in a will.
2. File the petition with the local probate court. The court will set a hearing date.
3. File a notice of hearing and mail the notice to everyone named in the petition.
4. Prepare the Order Determining Succession to Real Property (DE-315) for the judge to sign.
5. Once the judge has signed the order and approved your petition, file the order in the land records office in any county where real estate is located. You can also use the order to get title to bank accounts, securities, vehicles, and other titled assets.

Waiting period: You must wait 40 days after the death to file the petition. (Cal. Prob. Code § 13151.)

More Information on Probate and Estate Planning in California

Even though these probate procedures are much simpler than traditional probate in California, they can still be fairly complicated. For detailed, step-by-step guidance, refer to Nolo's book How to Probate an Estate in California, by Lisa Fialco.

You can also learn more about estate planning, probate, and estate administration with these other books by Nolo:

• The Executor's Guide, by Mary Randolph
• Every Californian's Guide to Estate Planning, by Liza Hanks
• Estate Planning Basics, by Denis Clifford

For more on California estate planning issues, see our section on California Estate Planning.

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