In California, if the value of all “probate” assets exceeds a threshold of $166,250 then a formal probate administration is required to transfer those assets. If the value of all “probate” assets is equal to or less than $166,250 then the personal representative may use a small estate affidavit to transfer the assets. “Probate” assets are those assets which do not transfer upon death via a trust, a beneficiary designation form, a “Pay on Death” (“POD”) or Transfer on Death (“TOD”) account or by a right of survivorship, such as a joint tenancy with right of survivorship or community property with right of survivorship. To use the affidavit, the personal representative must list all probate assets, the holder of those assets, such as a bank, and the value of those assets on the decedent’s date of death. The affidavit specifies the person(s) entitled to receive the property. And 40 days must have passed since decedent died before the affidavit may be signed and presented. When ready, the affidavit is presented to the holder of the assets and the holder transfers the assets with no additional proceedings. Use of a small estate affidavit saves the estate significant time and money, making it the preferred transfer method.

What Is Considered A Small Estate In California?

A small estate in California is one in which the value of all “probate” assets is equal to or less than $166,250. “Probate” assets are those assets which do not transfer upon death via a trust, a beneficiary designation form, a “Pay on Death” (“POD”) or Transfer on Death (“TOD”) account or by a right of survivorship, such as a joint tenancy with right of survivorship or community property with right of survivorship.

Do I Need An Attorney For A Small Estate Affidavit In California?

An attorney is not required to prepare a small estate affidavit. However, it is wise to consult with an attorney to ensure you’ve properly accounted for all assets and are not inadvertently leaving them off the affidavit. The affidavit is signed under penalty of perjury therefore you want to make sure you are accurately representing all assets that belong on the affidavit.

Does Homestead Property Have To Be Probated In California?

Yes, in order to claim the probate homestead set-aside the asset must be part of a formal probate administration. Assets passing outside of a probate administration, such as joint tenancy property, community property or trust property are not eligible for the probate homestead set-aside. The probate homestead set-aside is used to protect the family home from creditors for the benefit of the decedent’s surviving spouse or registered domestic partner and/or minor children. It may also be used if the decedent named a person other than their surviving spouse or registered domestic partner and/or minor children as a beneficiary of their home.

What Is Exempt Property Under California Probate?

Exempt property in California is all property which can transfer outside a formal probate administration. All property properly titled and transferred to a trust is exempt from probate. Any property with a valid beneficiary designation, such as a life insurance policy or retirement account, is exempt from probate. Property held in a “Pay on Death” (“POD”) or Transfer on Death (“TOD”) account is exempt from probate. Last, any property with a right of survivorship, such as property held as joint tenancy with right of survivorship or as community property with right of survivorship is exempt from probate. However, be careful if you are relying on these transfers to avoid probate as they don’t always provide for what happens if a beneficiary predeceases the property owner.

Who Is Generally Involved In The Small Estate Probate Process In California?

The people generally involved in the small estate probate process in California are the decedent’s beneficiaries or heirs, known in the small estate process as the “successors of the decedent”, and any person or company in possession of the property, known as the “holder of property”. If the decedent died with a will then their beneficiary or beneficiaries named in the will are considered the successors of the decedent. If the will is a pour over will then the decedent’s trust is considered the beneficiary. If the decedent died without a will then the decedent’s heirs under California’s intestacy laws are considered the successors of the decedent. Generally, under intestacy laws, heirs are the decedent’s closing living relatives.

For more information on Probate Law in California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (415) 484-0078 today.

Kelsey Quaranto

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