In California, if a decedent dies with a “small estate”, the “Affidavit Procedure” may be used by the decedent’s successor in interest, “… to collect money, receive tangible personal property, to obtain evidence of a debt, obligation, interest, right, security or chose in action ”. Let us discuss.
Presently, a small estate in California is one under $166,250 in total value. The value of the decedent’s vehicles, vessels, truck camper, floating home, or manufactured and mobile homes are excluded. Also excluded is up to $16,625 in unpaid salary or other compensation owed the decedent. If the decedent owned assets inside of a trust or assets with designated death beneficiaries these are not part of the estate.
The Affidavit Procedure may be used by decedent’s Successor in Interest once forty (40) days have passed since the decedent’s death. Successor in interest means the decedent’s beneficiary, or beneficiaries, entitled to inherit the property under the decedent’s will; otherwise, if the decedent had no will, it means the decedent’s heir(s).
To use the Affidavit Procedure, the Successor in Interest (claimant) must provide the person in possession with the following: a sworn affidavit/declaration of small estate signed by the successor in interest before a notary, a certified death certificate and an inventory and appraisal (if the decedent owned any real property), evidence of the decedent’s ownership of the property (if relevant), and proof of the claimant’s own identity. The required content of the affidavit/declaration is found in section 13101 of the Probate Code
As an example consider a decedent who dies owning valuable jewelry in a consignment store. The decedent has a will leaving her estate to her one daughter. Her estate is under $166,250 and does not include any real property. Forty days after the decedent’s death, the daughter provides the consignment store with the required affidavit/declaration of small estate with the decedent’s certified death certificate attached. The daughter presents the decedent’s consignment store receipt showing the decedent owned the jewelry, and her CA driver’s license. The jewelry store then gives her the jewelry.
Sometimes, when dealing with a financial institution (like a bank or brokerage), it is often necessary to include a “hold harmless” provision in the affidavit to induce the financial institution to provide the assets in the decedent’s account.
In California, once the claimant (affiant/declarant) has satisfied the affidavit procedure requirements, the person in possession must transfer title/possession of the property to the claimant. Otherwise, the successor is entitled to bring a lawsuit to recover the property or compel its payment, deliver or transfer. The claimant may also recover reasonable attorney fees if the court finds that the holder acted unreasonably in refusing to pay, deliver or transfer the property
The Affidavit/Declaration procedure, however, is not exclusive of other procedures. That is, a probate may still be opened, if necessary, because of competing ownership claims or because the decedent’s creditors want the decedent’s estate to pay debts.
If the decedent’s estate becomes subject to a probate then the affidavit/declaration can only be used with the written permission of the decedent’s court appointed personal representative. Moreover, the personal representative may recover property received earlier by a successor in interest using the affidavit procedure when a probate is later commenced.
Another form of the affidavit procedure is available for the decedent’s successor to claim title to real property when the decedent owned real property appraised by the local probate referee at less than $55,425, presently. The real property affidavit procedure can only be used after six (6) months from the decedent’s death. The affidavit, death certificate and inventory and appraisal are recorded as one document in the county where the property is situated.
The foregoing is a generalized discussion of how California’s affidavit procedure can be used as an alternative to probate for small estates. In addition, there is a small estate petition that applies when the appraised value of the decedent’s real property exceeds $55,425 but the estate is still a small estate under $166,250.
Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at dennis@DennisFordhamLaw.com and 707-263-3235.