I’m Edward Burns, an attorney in Rocklin with an estate planning and probate law practice. Today I’ll introduce you to the small estate affidavit and answer this common question: Do I have to go to probate court?
I live in Rocklin, CA and my family member died without estate planning. Do I have to go to probate court?
Answer: A trust typically avoids the need for probate. However, avoiding probate court doesn’t always require a trust. In California, Probate Code § 13100 allows certain family members to collect the deceased’s property through a “Small Estate Affidavit” procedure. First, let’s look at the limits, followed by the procedure to collect the decedent’s property. We’ll then explain how to obtain this powerful tool to collect (and transfer) the decedent’s property.
Small Estate Affidavit Limitations
To avoid probate court without estate planning we first look at the value of the decedent’s estate at the time of death. The estate cannot have a gross value of more the $166,250. Loans don’t reduce the total value of the estate.
Then we look for real property. Probate Code § 13200(a)(5) blocks the procedure unless the real property “… fifty-five thousand four hundred twenty-five dollars ($55,425),” if the the owner died before April 1, 2022. Any land that has a home on it will likely fail this test, but it is possible to own a plot of land in California that is worth less than $55,425. After passing these tests, the next step is to start the procedure.
Small Estate Affidavit Procedure
First, I look for the “Successor of the Decedent,” which means, those who are the heir or heirs of the estate, entitled to the property without a will. (Probate Code § 13006). Therefore, a surviving spouse is successor of the decedent. Likewise, children would be successors of the decedent if there isn’t a surviving spouse. There are other successors, including trustees, that can use the procedure, but we’ll discuss that in a future blog.
The next step in the small estate affidavit procedure is to wait 40 days. During the 40-day countdown, the successor creates an inventory of what the decedent owned. For instance, paychecks, cars, and bank accounts all appear in the inventory.
In addition, I advise my successors to obtain at least 5 certified copies of the death certificate because we need these documents later. Before visiting your estate planning attorney, have these ready.
Obtaining a Small Estate Affidavit
Finally, contacting our office is the last step in getting the power to collect property and avoid probate court. We’ll prepare your small estate affidavit in which you’ll declare:
- At least 40 days have passed since the decedent’s death,
- There isn’t a probate proceeding now or completed in California,
- The gross fair market value of the decedent’s property is not a penny over $166,250,
- You’re collecting the property listed on the affidavit,
- That you either are the successor of the decedent or have the successor’s consent to collect the property,
- That no one else has a “superior right” to the interest of the decedent (which means you’re not jumping the line over your father unless he has consented),
- That you swear all of this is true under penalty of perjury, and
- That you request the property be paid, delivered, or transferred to you.
With the affidavit in hand, you’ll present it to anyone (banks, for example) holding the decedent’s things and that company or person must turn over that property.
Call or Book Online for This Powerful Tool
Contacting our Rocklin, CA estate planning office for advice should be your first step after a family member has died. The small estate affidavit is a powerful tool that we use often. In particular, we use this procedure even when the decedent has a trust. We’ll help give you the tools to finish the estate if you call our office at 916-282-9799. Or book online for a free consultation.